Roland Electrical Co. v. Walling
326 U.S. 657 (1946)

Annotate this Case

U.S. Supreme Court

Roland Electrical Co. v. Walling, 326 U.S. 657 (1946)

Roland Electrical Co. v. Walling

No. 45

Argued October 8, 1945

Decided January 28, 1946

326 U.S. 657

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Syllabus

Petitioner, a Maryland corporation having its principal office, place of business and a manufacturing plant in Baltimore, is engaged there in commercial and industrial wiring, electrical contracting, and dealing in electrical motors and generators for private, commercial, and industrial uses. It had approximately 1,000 active accounts, 99% of which were commercial or industrial firms. Of its 33 larger and most active accounts, one was a telephone company engaged in interstate commerce, four were engaged in the repair of ships, tugs, barges, and other boats intended for movement in interstate commerce, and (with one exception) the remainder were engaged in the production of goods for commerce as defined in § 3 of the Fair Labor Standards Act, shipping at least a substantial portion of their total production out of Maryland. All of petitioner's mechanics worked, in practically every work week, for some of these 33 customers, either in the repair of their motors or generators, the reconstruction of used motors sold to them, or in performing electrical work at their respective establishments. The Wage and our Administrator brought suit to enjoin petitioner from violating the minimum wage, maximum hour, and report-making provisions of the Fair Labor Standards Act.

Held:

1. Petitioner's employees are engaged "in the production of goods for [interstate] commerce" so as to bring them within the coverage of §§ 6 and 7 of the Fair Labor Standards Act. P. 326 U. S. 662.

2. They are not exempted from the Act on the ground that petitioner is a "service establishment" within the meaning of § 13(a)(2). P. 326 U. S. 666.

3. Section 6(a) of the Act, when read with the definitions of "commerce," "goods," and "produced" in § 3(b), (i), and (j), requires every employer to pay not less than the required minimum wages to each of his employees who is employed in any process or occupation necessary to the production, in any State, of any part or ingredient of any articles or subjects of trade, commerce or transportation, of any character, for trade, commerce, or transportation among the several States. P. 326 U. S. 663.

Page 326 U. S. 658

(a) This does not require the employee to be directly "engaged in commerce" among the several States. P. 326 U. S. 663.

(b) It does not require the employee to be employed in the production of an article which itself becomes a subject of commerce or transportation among the several States. P. 326 U. S. 663.

(c) It is enough that the employee be employed, for example, in an occupation which is necessary to the production of a part of any other "articles or subjects of commerce of any character" which are produced for trade, commerce, or transportation among the several States. P. 326 U. S. 663.

(d) It does not require an employee to be employed exclusively in the specified occupation. P. 326 U. S. 664.

(e) It does not require the occupation in which he is employed to be indispensable to the production under consideration. P. 326 U. S. 664.

(f) It is enough that his occupation be "necessary to the production." P. 326 U. S. 664.

(g) Even though there may be alternative occupations that could be substituted for it, it is enough that the one at issue is needed in such production and would, if omitted, handicap the production. P. 326 U. S. 664.

4. The work of petitioner's employees has such a close and immediate tie with the process of production for commerce, and was such an essential part of it, that the employees are to be regarded as engaged in an occupation "necessary to the production of goods for commerce." Kirschbaum Co. v. Walling,316 U. S. 517. P. 326 U. S. 665.

5. When read in the light of the declared purpose of the Act, its legislative history, and its administrative interpretation, § 13(a)(2), exempting employees "engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce," does not exempt employees "engaged in the production of goods for [interstate] commerce." P. 326 U. S. 666.

(a) When so read, it exempts employees of only such retail or service establishments as are comparable to local merchants, corner grocers, or filling station operators who sell to or serve ultimate consumers. P. 326 U. S. 666.

(b) Its origin has nothing to do with establishments "producing goods for [interstate] commerce." P. 326 U. S. 667.

6. To the extent that sales or services are necessary for the production of goods for interstate commerce, they generally are not sales or services to an ultimate consumer for his personal use, and, accordingly, are neither retail sales nor services of a comparable character within the meaning of § 13(a)(2) . P. 326 U. S. 667.

Page 326 U. S. 659

7. To fail to cover in this Act the multitude of employees who are engaged in establishments which supply the materials and services currently needed for the maintenance of productive machinery used by those who produce goods for interstate commerce would take the heart out of the Act. P. 326 U. S. 668.

8. Its primary purpose is not so much to regulate interstate commerce, as such, as it is to prohibit the shipment in interstate commerce of goods produced under substandard labor conditions, and thus to raise living standards. P. 326 U. S. 669.

9. This purpose will fail of realization unless the Act has sufficiently broad coverage to eliminate in large measure from interstate commerce the competitive advantage accruing from savings in costs based upon substandard labor conditions. P. 326 U. S. 670.

10. In the legislative history of the Act, there never was an intent expressed to exempt retailers other than local merchants of the type dealing with the ultimate consumer. P. 326 U. S. 671.

11. The debates in Congress show an intent to restrict the word "retail" to such transactions with ultimate consumers as are commonly carried on at local dry goods, butchering, or grocery stores. P. 326 U. S. 672.

12. This is confirmed by the general usage of the word "retail," which makes a distinction not merely between the size and volume of sales, but also between types of purchasers. It relates to sales to ultimate consumers, as distinguished from those who buy to resell or to use for business needs. P. 326 U. S. 673.

13. Government usage makes the same distinction on the basis of the use for which the goods are purchased. P. 326 U. S. 674.

14. The word "service" is associated with the word "retail" in this Act so as to restrict its meaning similarly to services to ultimate users of them for personal, rather than commercial, purposes. P. 326 U. S. 675.

15. This interpretation of the term "retail and service establishments" is reinforced by the administrative interpretations of the Wage and Hour Administrator, which are entitled to great weight. P. 326 U. S. 676.

16. Although the motors sold by petitioner were not purchased by its customers for resale or to be processed for resale, and although they were to be used and probably ultimately "consumed" in the hands of petitioner's customers, they remained actively in use in the great field of the production of goods for interstate commerce to which the Act is directed. P. 326 U. S. 678.

Page 326 U. S. 660

17. The record establishes the character of petitioner's customers as "commercial and industrial," and not "retail," customers in the same sense as is the customer of the local merchant, grocer, or filling station operator who buys for his own personal consumption. P. 326 U. S. 678.

18. The Act is concerned with goods in the stream of commerce, but not with those in "the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof." P. 326 U. S. 678.

146 F.2d 745 affirmed.

Certiorari, 325 U.S. 849, to review reversal of an order, 54 F.Supp. 733, dismissing a complaint of the Administrator of the Wage and Hour Division of the Department of Labor seeking to enjoin violations of the Fair Labor Standards Act of 1938.

MR. JUSTICE BURTON delivered the opinion of the Court.

The questions presented are (1) whether petitioner's employees are engaged "in the production of goods for commerce" so as to bring them within the coverage of §§ 6 and 7 of the Fair Labor Standards Act of 1938 (52 Stat. 1060, 1062, 1063, 29 U.S.C. §§ 206 and 207), and (2), if so, whether they are exempted from the Act because "engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce" within the meaning of § 13(a)(2), 29 U.S.C. § 213(a)(2).

Respondent sought a permanent injunction in the United States District Court restraining petitioner from continued violation of the minimum wage, maximum hour, and report-making provisions of the Act. 29 U.S.C.

Page 326 U. S. 661

§§ 206, 207, 211(c). As to the coverage by the Act, the District Court said that "the view of the Administrator should not be accepted," but it rested its dismissal of the complaint upon the ground that the petitioner was exempted under § 13(a)(2). 54 F.Supp. 733, 736. The Circuit Court of Appeals, on the other hand, held that petitioner's employees "were engaged in the production of goods for commerce," and that the petitioner was not a "retail or service establishment" within the exemption prescribed in § 13(a)(2). It accordingly reversed the order of dismissal and remanded the cause for further proceedings in accordance with its opinion. 146 F.2d 745, 746. We granted certiorari especially because of the divergence of opinions among the Circuit Courts of Appeals as to the interpretation of § 13(a)(2). [Footnote 1]

Most of the relevant facts were stipulated. Petitioner is a Maryland corporation "having its principal office, place of business and a manufacturing plant" in Baltimore. It is there engaged in "commercial and industrial wiring, electrical contracting, and dealing in electrical motors and generators, for private, commercial, and industrial uses."

Petitioner had "approximately 1,000 active accounts . . . 99 percent of which are commercial or industrial firms." Its "larger and most active accounts" were 33 in number. Of such 33 customers, one was a telephone company "engaged in interstate commerce;" four were "engaged in the repair of ships, tugs, barges, and other boats which were intended for movement in interstate commerce,"

Page 326 U. S. 662

and

"the remaining companies on said list, with the exclusion of the American Ice Company [a small account in the period stipulated to be representative], were engaged in the production of goods for commerce as defined in Section 3 of the Fair Labor Standards Act of 1938, shipping at least a substantial portion of their total production to points outside the Maryland."

During the period stipulated,

"every mechanic of the defendant [petitioner] worked, in practically every workweek, for some of the said [33] customers, either in the repair of their motors, generators, the reconstruction of used motors sold to them or in performing electrical work at their respective establishments."

To carry on its entire business, the petitioner had 36 employees, consisting of a foreman, 4 troubleshooters, 14 mechanics, 11 helpers, and 6 office employees. No claim of coverage is made on the ground that any of the petitioner's employees were engaged "in [interstate commerce]," but only that they were engaged "in production of goods for [interstate] commerce."

I

As to coverage, the Act is unambiguous, and the petitioner's employees come squarely within it as employees "engaged . . . in the production of goods for commerce." This turns on §§ 6(a), 7(a), 3(b), 3(i), and 3(j). Section 6(a) provides:

"Every employer shall pay to each of his employees who is engaged in commerce of in the production of goods for commerce wages at the following rates. . . ."

(Italics supplied.) Section 7(a) likewise provides:

"No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce"

at wages less than 1 1/2 times the regular rate, where an employee is employed for more than the maximum number of hours prescribed. (Italics supplied.)

Page 326 U. S. 663

Section 3 includes the following:

"(b) 'Commerce' means trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof."

"* * * *"

"(i) 'Goods' means goods (including ships and marine equipment), wares, products, commodities, merchandise, or articles 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, manufacture, or processor 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."

(Italics supplied.)

Putting these definitions together in their own terms, § 6(a), as applied to the facts of this case, provides, in effect, that

"Every employer shall pay [not less than the required minimum wages] to each of his employees who is employed in any process or occupation necessary to the production, in any state, of any part or ingredient of any articles or subjects of trade, commerce or transportation, of any character, for trade, commerce or transportation among the several states."

This does not require the employee to be directly "engaged in commerce" among the several states. This does not require the employee to be employed even in the production of an article which itself becomes the subject of commerce or transportation among the several states. It is enough that the employee be employed, for example, in an occupation which is necessary

Page 326 U. S. 664

to the production of a part of any other "articles or subjects of commerce of any character" which are produced for trade, commerce, or transportation among the several states. This does not require an employee to be employed exclusively in the specified occupation. This does not require that the occupation in which he is employed by indispensable to the production under consideration. It is enough that his occupation be "necessary to the production." There may be alternative occupations that could be substituted for it, but it is enough that the one at issue is needed in such production, and would, if omitted, handicap the production.

The necessity to the petitioner's customers, in their productive work, of the sales made and the services supplied to them by the petitioner's employees is the foundation of petitioner's business. The essential need for motors and wiring in the conduct of electrically operated productive processes of manufacture is beyond question. When commercial or industrial producers, such as the petitioner's customers, use electric motors in the production of goods for interstate commerce, services such as those of petitioner's employees are necessary to the continuity of such production. Such sales and services must be immediately available to petitioner's customers, or their production will stop. If not supplied to the customers by employees of the petitioner, such customers would have to employ comparable employees of their own, or of other contractors. [Footnote 2]

Page 326 U. S. 665

The work of petitioner's employees has

"such a close and immediate tie with the process of production for commerce, and was therefore so much an essential part of it, that the employees are to be regarded as engaged in an occupation 'necessary to the production of goods for commerce.'"

"Kirschbaum Co. v. Walling,316 U. S. 517, 316 U. S. 525-526. The relation of petitioner's employees to the production of goods for interstate commerce by petitioner's customers is fully as close and 'necessary' as was that of the loft building watchmen and porters to the petitioner's tenants in Kirschbaum Co. v. Walling, supra; the manufacturing plant watchman of the respondent in Walton v. Southern Package Corp.,320 U. S. 540; or the fire guards subject to call in Armour & Co. v. Wantock,323 U. S. 126. In the latter case, this Court said (p. 323 U. S. 130):"

". . . no hard and fast rule may be transposed from one industry to another to say what is necessary in 'the production of goods.' What is practically necessary to it will depend on its environment and position. . . . What is required is a practical judgment as to whether the particular employer actually operates the work as part of an integrated effort for the production of goods."

The foregoing conclusions follow so clearly from the language of the statute as to make unnecessary a discussion of the declared purpose or the legislative history of the Act to support them. [Footnote 3]

Page 326 U. S. 666

II

The second question is whether or not petitioner's employees are exempted from the Act on the ground that petitioner is a "service establishment" within the meaning of § 13(a)(2). [Footnote 4] The language of that clause is capable of two interpretations. If read in a detached and broad sense, it can be made to exempt from the Act the employees of the petitioner, together with hundreds of thousands of other employees like them, to the serious detriment of the effectiveness of the Act. However, if read in connection with the declared purpose of the Act and in the light of its legislative history and administrative interpretation, the clause does not reach employees "engaged . . . in the production of goods for commerce," as were those in this case. When so read, the exemption reaches employees of only such retail or service establishments as are comparable to the local merchant, corner grocer, or filling station operator who sells to or serves ultimate consumers who are at the end of, or beyond, that "flow of goods in commerce" which it is the purpose of the Act to reach. See § 2, infra. Without this clause, such local establishments might find themselves technically covered by the Act not because they were "producing goods for [interstate] commerce," but because, for example, they were retailing milk near a state line and therefore might be regarded as actually in interstate commerce when delivering retail sales of milk to local customers. all of whom were ultimate consumers of it for their personal use, but a small proportion of whom lived across the state line from the milk dealer. Walling v.

Page 326 U. S. 667

Jacksonville Paper Co.,317 U. S. 564, 317 U. S. 571; A. H. Phillips v. Walling,324 U. S. 490, 324 U. S. 497. Similarly, it was felt that, without this exemption clause, the employees of a local merchant who purchased his goods from outside his state but retailed them all within his state to ultimate consumers across his counter, might nevertheless technically be covered by the Act as being actually "in [interstate] commerce" because of his purchases, although his sales all might be at "retail" and beyond the end of the "flow of goods in commerce." 83 Cong.Rec. 7393, 7394, 7436-7438. The origin of this clause, § 13(a)(2), had nothing to do with establishments "producing goods for [interstate] commerce."

It is rare, if not impossible, for an employee who is engaged in an occupation necessary to the production of goods for interstate commerce to be said to be at the same time an employee engaged in a retail or service establishment whose selling and servicing is confined to ultimate consumers. These employments are largely mutually exclusive. To the extent that sales or services are necessary for the production of goods for interstate commerce, they generally are, by that hypothesis, not sales or services to an ultimate consumer for his personal use, and, accordingly, are neither "retail" sales nor services of a comparable character within the meaning of § 13(a)(2).

The logic of this result is as clear as the declared purpose, legislative history, and administrative practice which combine to produce it.

The purposes of the Act are declared as follows in § 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 standard of living necessary for health, efficiency, and general wellbeing of workers (1) causes commerce and the channels and instrumentalities of commerce to be used to spread and perpetuate

Page 326 U. S. 668

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 commerce."

"(b) It is hereby declared to be the policy of this Act, through the exercise by Congress of its power to regulate commerce among the several States, to correct, and as rapidly as practicable to eliminate, the conditions above referred to in such industries without substantially curtailing employment or earning power."

52 Stat. 1060, 29 U.S.C. § 202. (Italics supplied.)

To fail to cover in this Act the multitude of employees who are engaged in establishments like that of the petitioner and which supply the materials and services currently needed for the maintenance of productive machinery used by those who produce goods for interstate commerce would take the heart out of this Act. Savings resulting from substandard labor conditions would be reflected directly into competitive costs. This would weaken the governmental mechanism for sustaining "the minimum standard of living necessary for the health, efficiency, and general wellbeing of workers" referred to as the purpose of the Act. [Footnote 5]

Page 326 U. S. 669

The primary purpose of the Act is not so much to regulate interstate commerce as such as it is, through the exercise of legislative power, to prohibit the shipment of goods in interstate commerce if they are produced under substandard labor conditions. Such a prohibition is an appropriate exercise of the power of Congress over interstate commerce. United States v. Darby,312 U. S. 100, 312 U. S. 115; United States v. Carolene Products Co.,304 U. S. 144, 304 U. S. 147. This Act seeks to eliminate substandard labor

Page 326 U. S. 670

conditions, including child labor, on a wide scale throughout the nation. The purpose is to raise living standards. This purpose will fail of realization unless the Act has sufficiently broad coverage to eliminate in large measure from interstate commerce the competitive advantage accruing from savings in costs based upon substandard labor conditions. Otherwise, the Act will be ineffective, and will penalize those who practice fair labor standards as against those who do not.

The original Bill provided for a labor standards board which was given broad authority to issue regulations and orders to carry out the provisions of the Act, including authority to determine some questions of coverage. It listed no specific exemptions such as are now contained in § 13. In the joint hearings on this Bill (Joint Hearings, 75th Cong., 1st Sess., on S. 2475 and H.R. 7200, pp. 1-89, see especially pp. 24-25, 24-29, 35 et seq.), the Chairman of the Senate Committee on Education and Labor, asked the Assistant Attorney General (p. 35) --

"Would you explain under just what circumstances, and under what circumstances only, it would be possible for the regulation of retail establishments and small business enterprises to come under this bill?"

to which he replied --

"It was not intended by this bill to apply generally to retailers or apply to the service trades, such as the filling station attendant, and the pants presser and small business generally."

"* * * *"

"Practically, the situation in which a local merchant might be affected would be if he were moving his goods in the course of delivery across the State line to a substantial extent, so that he were engaging in interstate commerce; but, generally speaking, the policy of the bill is not to include the service trades and small businesses and the retailing enterprises. "

Page 326 U. S. 671

Section 6(a) of the original bill proposed to exempt the employees of any employer employing less than a fixed minimum number of employees except in those circumstances where the Labor Standards Board found that the maintenance of appropriate fair labor standards by even such a class of employers was necessary or appropriate in order to carry out the purposes, or prevent the circumvention, of any provision of the Act. The requirement of a minimum size for an included establishment, and the provisions for the Board and its discretionary power, were later eliminated, but the purpose of all of these provisions is served to a substantial degree by the insertion of § 13 in their place.

While its language and coverage were changed in details, the Bill did not depart substantially from its original purpose. This purpose remains the key to the meaning of the words defining its coverage, and also to those defining exemption from its coverage. There never was an intent expressed to exempt retailers other than the local merchants of the type dealing with the ultimate consumer. Section 13(a)(2) clarified the exemption of such of these as were near state lines and of local merchants whose purchases might be interstate, although the greater part of their sales were intrastate. [Footnote 6]

Page 326 U. S. 672

In the Bill as reported to the House of Representatives, April 21, 1938, the declaration of purposes referred to "substandard labor conditions in occupations in commerce, in the production of goods for commerce or otherwise affecting commerce." [Footnote 7] (Italics supplied.) The breadth of the phrase "affecting commerce" was so uncertain and difficult of definition that it was at first proposed in the Bill to grant to a labor standards board, and later to the Secretary of Labor, authority to determine what should be considered as actually "affecting commerce" within the meaning of the Act. This proposal proved unsatisfactory and Congress finally chose to forego the exercise of its full constitutional power and eliminated from the Act the clause "affecting commerce." The remaining coverage relates only to employees (1) "in [interstate] commerce" -- from whom § 13(a)(2) exempts employees of retail and service establishments the greater part of whose selling or servicing is in intrastate commerce -- and to those (2) "in production of goods for [interstate] commerce." The debates in Congress show an intent to restrict the word "retail" to such transactions with ultimate consumers as are commonly carried on at local dry goods, butchering, or grocery stores. The words "service establishments" and "servicing," however, were introduced in the final Conference Report, and were not discussed on the floor. [Footnote 8] 83 Cong.Rec. 9161, 9249.

Page 326 U. S. 673

Returning to the text of the Act and to its authoritative administrative interpretation, further confirmation is apparent. In general usage the noun "retail" means "The sale of commodities in small quantities or parcels;-opposed to wholesale." The verb "retail" means "To sell in small quantities, as by the single yard, pound, gallon, etc.; to sell directly to the consumer; as, to retail cloth or groceries." Webster's New International Dictionary, Unabridged (2d ed., 1938).

In the suggested use of the word "retail", as opposed to the word "wholesale," a distinction appears not merely between the size and volume of the sales but between types of purchasers. For example --

Page 326 U. S. 674

"Wholesaling includes all marketing transactions in which the purchaser is actuated solely by a profit or business motive in making the purchase."

"Retailing includes all marketing transactions in which the purchaser is actuated solely by a desire to satisfy his own personal wants or those of his family or friends through the personal use of the commodity or service purchased."

(Beckman and Engle in Wholesaling Principles and Practice (1937) p. 25.) Similarly, the Encyclopedia of Social Sciences states that "The distinguishing feature of the retail trade . . . consists in selling merchandise to ultimate consumers" (Vol. 13, p. 346), whereas wholesaling is said to cover sales

"to a retailer, a wholesaler, or an industrial consumer so long as the purpose of the customer in buying such goods is to resell them in one form or another or to use them for business needs as supplies or equipment."

(Vol. 15, p. 411.)

Governmental usage makes the same distinction on the basis of the use for which the goods are purchased. The Bureau of the Census states in its definition of "wholesale" that,

"in general, the distinguishing characteristic is that goods sold at wholesale are to be used for business purposes (such as materials for further processing and fabrication, merchandise for resale unchanged, etc.), rather than for personal or household consumption."

U.S. Census of Business, 1939, Instructions to Enumerators For Business and Manufactures, p. 18; also Vol. 1, Retail Trade, p. 1; Vol. II, Wholesale Trade, p. 1. It classifies as "wholesale sales," sales of goods or merchandise "to trading establishments of all kinds, to institutions, industrial, commercial, and professional users, and sales to governmental bodies." (Ibid. ) The Bureau of the Budget in its Standard Industrial Classification Manual, likewise classifies "wholesale trade" to include

"all establishments or places of business engaged primarily in selling merchandise to retailers, to industrial or commercial

Page 326 U. S. 675

users, or to other wholesalers. . . ."

Vol. II -- Nonmanufacturing Industries, 1942, p. 35. It defines "retail trade" to include "establishments engaged in selling merchandise for personal or household consumption and rendering services incidental to the sales of goods." (Ibid.) Similarly the Social Security Board, in its Industrial Classification Code, Vol. I, Description of Industries, 1942, pp. 99, 100, prepared for use of the Board and State agencies administering employment security legislation, distinguishes between wholesale and retail establishments on the basis of whether the goods they sell are to be used for business purposes or for personal or household purposes.

The word "retail" because of its ready contrast with "wholesale" is generally more restrictive than the word "service." The two, however, are used so closely together in this statute as to require them to be interpreted similarly. This makes it appropriate to restrict the broader meaning of "service" to a meaning comparable to that given the narrower term "retail." The words are put on a like level especially by their use in the alternative with the single word "establishment" in the phrase "any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce." (Italics supplied.) Accordingly, in proportion as the meaning of the word "retail" is restricted to sales made in small quantities to ultimate consumers to meet personal, rather than commercial and industrial uses of those articles, so it is correspondingly appropriate to restrict the word "service" to services to ultimate users of them for personal, rather than commercial, purposes. This is supported by judicial interpretation of the clause. [Footnote 9]

Page 326 U. S. 676

The administrative interpretation by the Administrator of the Wage and Hour Division of the terms "retail and service establishments," "retail sales," and "services," as used in this connection, reinforces the interpretations above stated, [Footnote 10] and this Court, in speaking of interpretations of this Act by the Wage and Hour Division, has said: "In any case, such interpretations are entitled to great weight."

Page 326 U. S. 677

United States v. American Trucking Assn.,310 U. S. 534, 310 U. S. 549. See also Skidmore v. Swift & Co.,323 U. S. 134, 323 U. S. 140. The Administrator classifies as "nonretail" many types of sales closely comparable to those made by the petitioner in this case, of motors, generators and similar equipment to commercial and industrial customers for their use in producing goods for interstate commerce. [Footnote 11]

Page 326 U. S. 678

Although, in this case, the motors sold by the petitioner were not purchased by its customers for resale or to be processed for resale, and although they were to be used and probably ultimately to be "consumed" in the hands of the petitioner's customers, these motors remained actively in use in the production of the "flow of goods in commerce." It is to this great field of the production of goods for interstate commerce that the Act is directed.

The record establishes the "commercial and industrial" character of the petitioner's customers. The petitioner's circular advertises its business as that of "electrical engineering, motor dealers, commercial and industrial wiring." (Italics supplied.) The circular offers "service for all types of commercial and industrial wiring." (Italics supplied.) The stipulation filed by the petitioner shows that 99% of its "active accounts as reflected in its Accounts Receivable Ledger . . . are commercial or industrial firms." (Italics supplied.) These are not "retail" customers in the same sense as is the customer of the local merchant, local grocer, or filling station operator who buys for his own personal consumption. The Fair Labor Standards Act is concerned with goods in the stream of commerce, but not with those in "the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof." See § 3(i), supra.

For these reasons, the employees of the petitioner were properly held to be engaged in the production of goods for interstate commerce under the coverage of the Fair Labor Standards Act, and were not taken out of that coverage by the exemption stated in § 13(a)(2). The judgment of the Circuit Court of Appeals accordingly is

Affirmed.

MR. JUSTICE JACKSON took no part in the consideration or decision of this case.

[Footnote 1]

Compare Fleming v. A. B. Kirschbaum Co., 124 F.2d 567, 572, and Fleming v. Arsenal Bldg. Corp., 125 F.2d 278, 280, both aff'd sub nom. Kirschbaum Co. v. Walling,316 U. S. 517, without disposing of the question now presented; Guess v. Montague, 140 F.2d 500; Bracey v. Luray, 138 F.2d 8; with Lonas v. National Linen Corporation, 136 F.2d 433, cert. denied, 320 U.S. 785; Martino v. Michigan Window Cleaning Co., 145 F.2d 163, cert. granted, 325 U.S. 849.

[Footnote 2]

The dependence of the commercial and industrial customers of the petitioner upon such sales and services is well presented in the petitioner's advertising circular:

"It costs more to operate a faulty motor than to buy a new one. But it isn't necessary to buy a new motor. We'll recondition your present motors to give you the same service and satisfaction as new ones. And we'll save you 25% to 50% on new motor costs. . . ."

"When a motor suddenly goes dead or lags, when trouble in electrical equipment arises, you need service and you need it quick! Every second of delay means more dollars lost. How well do we appreciate what speed means to our patrons, as well as dependable workmanship . . ."

"No job is too small or too large to handle promptly. Temporary replacements can be made immediately from our stocks. No charge is made for equipment that is loaned while repairs are being made."

[Footnote 3]

The decision does not rest on the small quantities of scrap annually sold, melted down, and shipped in interstate commerce, nor on the small amount of work performed by the petitioner in Maryland directly for customers outside of the State, nor upon the small numbers of sales of rebuilt motors to customers outside of the State. The result reached makes it unnecessary to consider whether any or all of the petitioner's employees were engaged "in [interstate] commerce," as distinguished from the "production of goods for [interstate] commerce."

[Footnote 4]

"Sec. 13. (a) The provisions of sections 6 and 7 shall not apply with respect to . . . (2) any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce. . . ."

52 Stat. 1060, 1067, 29 U.S.C. § 213(a)(2). (Italics supplied.)

[Footnote 5]

Phillips Co. v. Walling,324 U. S. 490, 324 U. S. 493. The Bill was introduced May 24, 1937, as S. 2475 and H.R. 7200, accompanied by a Presidential message. The sponsor of the Bill agreed that the Bill was "intended to carry out the suggestions made by the President in his message." 81 Cong.Rec. 4960, 4961. The President said,

"to protect the fundamental interests of free labor and a free people, we propose that only goods which have been produced under conditions which meet the minimum standards of free labor shall be admitted to interstate commerce. Goods produced under conditions which do not meet rudimentary standards of decency should be contraband, and ought not to be allowed to pollute the channels of interstate trade."

Id. at 4961. The President emphasized his purpose to follow the reasoning of Mr. Justice Holmes' dissenting opinion in the 5 to 4 decision in Hammer v. Dagenhart,247 U. S. 251, 247 U. S. 277. This Court has now overruled that decision and unanimously upheld the constitutionality of the Fair Labor Standards Act of 1938. United States v. Darby,312 U. S. 100, 312 U. S. 115-117. The Bill became known as the "Wage and Hour Bill." Later it received its official title of the "Fair Labor Standards Act of 1938." The respective Bills were referred to the Committee on Education and Labor in the Senate and the Committee on Labor in the House. Joint hearings were had before these Committees June 2-5, 7-15, 21 and 22, 1937. Hearings on S. 2475 and H.R. 7200, 75th Cong., 1st Sess. It was reported to the Senate July 8, 1937, with amendments. Sen.Rep. No. 884, 75th Cong., 1st Sess. After full discussion, it was passed by the Senate July 31, 1937, with amendments. 81 Cong.Rec. 7957. In that form, it was referred to the Committee on Labor of the House, and was reported out August 6, 1937 (H.Rep. No. 1452, 75th Cong., 1st Sess.), without significant changes as to coverage or exemptions. After debate, it was recommitted to the Committee on Labor December 17, 1937 (82 Cong.Rec. 1835), including particularly the substitution of a single Administrator in place of the Fair Labor Standards Board proposed in the original Bill. It was again reported favorably by the House Committee on Labor April 21, 1938, with amendments. H.Rep. No. 2182, 75th Cong., 3d Sess. After debate, it was passed by the House May 24, 1938. 83 Cong.Rec. 7449. It went to conference between the two Houses, and was reported out of conference with several amendments in substantially its present form, and the conference reports were adopted in both Houses June 14, 1938. 83 Cong.Rec. 9158, 9246. It was approved by the President June 25, 1938. The questions of coverage and exemption are closely related to each other in the discussion in Congress and in the amendments adopted.

[Footnote 6]

The original Senate Committee report said (Sen.Sep. No. 844, 75th Cong., 1st Sess., p. 5):

"The bill carefully excludes from its scope business in the several States that is of a purely local nature. It applies only to the industrial and business activities of the Nation insofar as they utilize the channels of interstate commerce, or seriously and substantially burden or harass such commerce. It leaves to State and local communities their own responsibilities concerning those local service and other business trades that do not substantially influence the stream of interstate commerce. For example, the policy in this regard is such that it is not even intended to include in its scope those purely local and small business establishments that happen to lie near State lines, and, solely on account of such location, actually serve a wholly local community trade within two States."

See alsonote 8infra; Walling v. Jacksonville Paper Co.,317 U. S. 564, 317 U. S. 571, and Phillips Co. v. Walling,324 U. S. 490, 324 U. S. 497.

[Footnote 7]

Section 2(a), S. 2475 accompanying report No. 2182 on Union Calendar No. 804 in the House of Representatives, 75th Cong., 3d Sess.

[Footnote 8]

See Debates in House of Representatives, 83 Cong.Rec. 7393-7394, 7436-7438. It is here that § 13(a)(2) had its origin in an amendment presented by Representative Celler and accepted by Chairman Norton of the House Committee on Labor. It provided for the insertion of the words "but no such order shall be applicable to any retail industry, the greater part of whose sales is in intrastate commerce."

It was intended "to eliminate retailing" and to prevent the classification of employees of retail establishments as employees engaged in interstate commerce because of either purchases or sales made by such employers across state lines. Representative Celler said (83 Cong.Rec. 7438):

"The courts will look to the debates in this House for what is meant by these words. . . . If you want to eliminate retailing, you should say so in clear-cut language, and this amendment which I offer indicates in the clearest way that retailing is exempted. . . . Accept it and then retail dry goods, retail butchering, grocers, retail clothing stores, department stores will all be exempt."

Representative Norton replied:

". . . in view of the great misunderstanding there must be about this retailing feature of the bill, the committee will accept the amendment. There has been a great deal of doubt as to the understanding of that particular section, and I think this amendment will not weaken our bill, but will in fact strengthen it."

The amendment thereupon was agreed to. (Ayes, 145 -- Noes, 56.)

Representative Johnson of Oklahoma, in withdrawing an amendment which would have expressly stricken out interstate purchases as a basis for bringing within the Act employees of an industry making such purchases, then said:

". . . the amendment . . . offered by the gentleman from New York [Mr. Celler], which amendment has been approved by this body, is to protect the little corner store, filling station, and other retailers who purchase a substantial part of their goods across the State line."

[Footnote 9]

Guess v. Montague, 140 F.2d 500, 503; cf. Fleming v. Arsenal Bldg. Corp., 125 F.2d 278, 280, aff'd sub nom. Kirschbaum Co. v. Walling,316 U. S. 517, 316 U. S. 526.

[Footnote 10]

Interpretative Bulletin No. 6 of the Wage and Hour Division of the United States Department of Labor and under the title of "Retail and Service Establishment -- The Scope and Applicability of the Exemption Provided by Section 13(a)(2) of the Fair Labor Standards Act of 1938," originally issued December, 1938, and revised June, 1941, 2 C.C.H. Labor Law Service,

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