1. The publisher of a daily newspaper with a circulation ranging
from 9,000 to 11,000 copies, of which about one-half of one percent
regularly goes out of the State, is engaged in the production of
good for interstate commerce within the meaning of the Fair Labor
Standards Act of 1938. Pp.
327 U. S. 180,
327 U. S.
184.
(a) The maxim
de minimis has no application here,
because Congress made no distinction on the basis of volume of
business, but, by § 15(a)(1) of the Act, outlawed the shipment in
interstate commerce of "any goods in the production of which any
employee was employed in violation of" the overtime and minimum
wage requirements of the Act. P.
327 U. S.
181.
(b) Though it be assumed that sporadic or occasional shipments
of insubstantial amounts of goods were not intended to he included
in that prohibition, there is no warrant for assuming that regular
shipments are to be included or excluded dependent on their size.
P.
327 U. S.
181.
Page 327 U. S. 179
(c) These views are borne out by the legislative history of the
Act, by the express exemption by § 13(a)(8) of any employee of any
weekly or semiweekly newspaper with a circulation of less than
3,000, the major part of which is within the county of publication,
and by the lack of any exemption for daily newspapers or on the
basis of volume of out-of-state circulation. P.
327 U. S.
182.
2. The principles announced in
Grosjean v. American Press
Co., 297 U. S. 233,
holding a state license tax on newspapers graduated in accordance
with the volume of circulation unconstitutional, are not applicable
here, notwithstanding the exemption of small weekly and semiweekly
newspapers by § 13(a)(8) of the Fair Labor Standards Act. P.
327 U. S.
184.
(a) The Act does not lay a direct burden on the press in
violation of the First Amendment, since the press has no special
immunity from laws applicable to business in general. P.
327 U. S.
184.
(b) The exemption of small weeklies and semiweeklies is not a
"deliberate and calculated device" to penalize a certain group of
newspapers, but was inserted to put those papers more on a parity
with other small town enterprises. P.
327 U. S.
184.
(c) The Fifth Amendment does not require full and uniform
exercise of the commerce power. Congress may weigh relative needs
and restrict the application of a legislative policy to less than
the entire field. P.
327 U. S.
184.
3. The fact that the publisher of such a newspaper is engaged in
the production of goods for interstate commerce does not
necessarily mean that his employees are covered by the Fair Labor
Standards Act of 1938, since that is dependent on the character of
their work.
Kirschbaum Co. v. Walling, 316 U.
S. 517,
316 U. S. 524;
Walling v. Jacksonville Paper Co., 317 U.
S. 564. P.
327 U. S.
184.
4. No opinion is expressed on that phase of the case, since the
state appellate courts did not pass on it. P.
327 U. S.
185.
294 N.Y. 701, 60 N.E.2d 848, reversed.
Petitioners sued in the New York courts for overtime
compensation under § 16(b) of the Fair Labor Standards Act. The
trial court overruled a motion to dismiss the complaint, 179 Misc.
832, 38 N.Y.S.2d 231, and gave judgment for petitioners. 180 Misc.
8, 41 N.Y.S.2d 534. The appellate division reversed. 267 App.Div.
284, 45 N.Y.S.2d 479. The court of appeals affirmed. 293 N.Y. 781,
58 N.E.2d 520. It later amended the
Page 327 U. S. 180
remittitur. 294 N.Y. 701, 60 N.E.2d 848. This Court granted
certiorari. 325 U.S. 845.
Reversed, p.
327 U. S.
185.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Respondent publishes a daily newspaper at White Plains, New
York. During the period relevant here, its daily circulation ranged
from 9,000 to 11,000 copies. It had no desire for, and made no
effort to secure, out-of-state circulation. Practically all of its
circulation was local. But about one-half of 1 percent was
regularly out-of-state. [
Footnote
1] Petitioners are some of respondent's employees. They brought
this suit in the New York courts to recover overtime compensation,
liquidated damages, and counsel fees pursuant to § 16(b) of the
Fair Labor Standards Act of 1938, 52 Stat. 1069, 29 U.S.C. §
216(b). The Supreme Court gave judgment for the petitioners. 179
Misc. 832, 38 N.Y.S.2d 231; 180 Misc. 8, 41 N.Y.S.2d 534. The
Appellate Division reversed, and ordered the complaint to be
dismissed. 267 App.Div. 284, 45 N.Y.S.2d 479. That judgment was
affirmed by the Court of
Page 327 U. S. 181
Appeals without opinion. 293 N.Y. 781, 58 N.E.2d 520; 294 N.Y.
701, 60 N.E.2d 848. The case is here on a petition for a writ of
certiorari which we granted because of the probable conflict
between the decision below and those from the federal courts.
[
Footnote 2]
The Appellate Division applied the maxim
de minimis to
exclude respondent from the provisions of the Act. We think that
was error. The Court indicated in
Labor Board v.
Fainblatt, 306 U. S. 601,
306 U. S. 607,
that the operation of the National Labor Relations Act (49 Stat.
449, 29 U.S.C. § 151) was not dependent on "any particular volume
of commerce affected more than that to which courts would apply the
maxim
de minimis." That Act, [
Footnote 3] unlike the present one (
Walling v.
Jacksonville Paper Co., 317 U. S. 564,
317 U. S. 570,
571), regulates labor disputes "affecting" commerce. 49 Stat. 450,
29 U.S.C. § 152. We need not stop to consider what different scope,
if any, the maxim
de minimis might have in cases arising
thereunder. Here, Congress had made no distinction on the basis of
volume of business. By § 15(a)(1), it has made unlawful the
shipment in commerce of "any goods in the production of which any
employee was employed in violation of" the overtime and minimum
wage requirements of the Act. Though we assume that sporadic or
occasional shipments of insubstantial amounts of goods were not
intended to be included in that prohibition, there is no warrant
for assuming that regular shipments in commerce are to be
included
Page 327 U. S. 182
or excluded dependent on their size. That has been the
consistent position of the Administrator. Interpretative Bull. No.
5, par. 9 (1939), 1944-45 Wage Hour Man. 21. His rulings and
interpretations,
"while not controlling upon the courts by reason of their
authority, do constitute a body of experience and informed judgment
to which courts and litigants may properly resort for
guidance."
Skidmore v. Swift & Co., 323 U.
S. 134,
323 U. S.
140.
We stated in
United States v. Darby, 312 U.
S. 100,
312 U. S.
123,
"Congress, to attain its objective in the suppression of
nationwide competition in interstate commerce by goods produced
under substandard labor conditions, has made no distinction as to
the volume or amount of shipments in the commerce or of production
for commerce by any particular shipper or producer. It recognized
that, in present-day industry, competition by a small part may
affect the whole and that the total effect of the competition of
many small producers may be great."
And see Warren-Bradshaw Co. v. Hall, 317 U. S.
88,
317 U. S. 91.
That view is borne out by the legislative history of the Act.
Earlier drafts had embodied the "substantial" standard. [
Footnote 4] These
Page 327 U. S. 183
were omitted from the coverage provisions of the one which
became the law. Moreover, one of the exemptions written into the
Act extends to
"any employee employed in connection with the publication of any
weekly or semiweekly newspaper with a circulation of less than
three thousand the major part of which circulation is within the
county where printed and published."
§ 13(a)(8). Representative Creal of Kentucky proposed this
exemption. He stated that,
"under this bill, because 1 or 2 percent of a paper's
circulation goes outside to people who want to get the home-town
paper to see whether or not Lucy got married, or whether Sally's
baby has been born yet, because that infinitesimal bit of their
business is with people outside the county, these publishers fall
under the provisions of this bill, when on each side of this little
printshop are the butcher and the baker, who are exempt and who are
financially better fixed than he is."
83 Cong.Rec. p. 7445. No such exemption for daily newspapers was
granted. [
Footnote 5] No
exemption on the basis of volume of out-of-state circulation was
written into the Act. Rather, the exemption of the small weeklies
or semiweeklies seems to have been adopted on the assumption that,
without it, a newspaper with a regular out-of-state circulation, no
matter how small, would be under the Act. The choice Congress made
was not the exemption of newspapers with small out-of-state
circulations, but the exemption of certain types of small
newspapers. We would change the nature of the exemption which
Congress saw fit to grant
Page 327 U. S. 184
if we applied the maxim
de minimis to this type of
case. We would also disregard the plain language of § 15(a)(1)
prohibiting the shipment in commerce of "any goods" in the
production of which "any employee" was employed in violation of the
overtime and minimum wage requirements of the Act.
Respondent argues that to bring it under the Act, while the
small weeklies or semiweeklies are exempt by reason of § 13(a)(8),
is to sanction a discrimination against the daily papers in
violation of the principles announced in
Grosjean v. American
Press Co., 297 U. S. 233.
Volume of circulation, frequency of issue, and area of distribution
are said to be an improper basis of classification. Moreover, it is
said that the Act lays a direct burden on the press in violation of
the First Amendment. The
Grosjean case is not in point
here. There, the press was singled out for special taxation, and
the tax was graduated in accordance with volume of circulation. No
such vice inheres in this legislation. As the press has business
aspects, it has no special immunity from laws applicable to
business in general.
Associated Press v. Labor Board,
301 U. S. 103,
301 U. S.
132-133. And the exemption of small weeklies and
semiweeklies is not a "deliberate and calculated device" to
penalize a certain group of newspapers.
Grosjean v. American
Press Co., supra, p.
297 U. S. 250.
As we have seen, it was inserted to put those papers more on a
parity with other small town enterprises. 83 Cong.Rec. 7445. The
Fifth Amendment does not require full and uniform exercise of the
commerce power. Congress may weigh relative needs and restrict the
application of a legislative policy to less than the entire field.
Steward Machine Co. v. Davis, 301 U.
S. 548;
Currin v. Wallace, 306 U. S.
1,
306 U. S.
13-14.
We hold that respondent is engaged in the production of goods
for commerce. That, of course, does not mean that these
petitioners, its employees, are covered by the Act. The
applicability of the Act to them is dependent on the
Page 327 U. S. 185
character of their work.
Kirschbaum Co. v. Walling,
316 U. S. 517,
316 U. S. 524;
Walling v. Jacksonville Paper Co., supra, pp.
317 U. S.
571-572. We express no opinion on that phase of the
case, as the New York appellate courts did not pass on it. Since
the judgment below must be reversed, the question whether the Act
is applicable to these employees will be open on the remand of the
cause.
Reversed.
MR. JUSTICE JACKSON took no part in the consideration or
decision of this case.
[
Footnote 1]
About 45 copies daily. There appears to have been an
out-of-state circulation of 43, 46, and 40 for the years ending
March 31, 1939, 1940, and 1941, respectively.
[
Footnote 2]
Cf. Davis v. Goodman Lumber. Co., 133 F.2d 52, 53;
Sun Publishing Co. v. Walling, 140 F.2d 445, 448;
New
Mexico Public Service Co. v. Engel, 145 F.2d 636, 640.
[
Footnote 3]
Sec. 1 of that Act is a statement of the policy of Congress. It
states that the denial by employers of the right of the employees
to bargain collectively has the intent or effect of burdening or
obstructing commerce by "materially affecting" the flow of goods
from or into the channels of commerce or by "causing diminution of
employment and wages in such volume as substantially to impair or
disrupt" the market for such goods.
[
Footnote 4]
See, for example, H.R. 7200, 75th Cong., 1st Sess.,
introduced May 24, 1937. It provided for a Labor Standards Board to
administer the Act. The Board was to be given the power to
establish minimum wages when it found,
inter alia, that
wages lower than a minimum fair wage were paid to employees
"engaged in the production of goods which are sold or shipped to a
substantial extent in interstate commerce." § 5(a).
The Confidential Committee Print of April 13, 1938, containing a
proposed amendment to S. 2475, 75th Cong., 1st Sess., and embodied
in the Committee Print of April 15, 1938, S. 2475, 75th Cong., 3d
Sess., would have limited the applicability of the Act to employers
"engaged in commerce in any industry affecting commerce. . . ." §§
4, 5. It was further provided by § 6 of the draft that the
Secretary of Labor should, after notice and hearing, determine the
relation of the various industries to commerce. Only if the
Secretary found that the industry was (a) "dependent for its
existence upon substantial purchases or sales of goods in commerce
and upon transportation in commerce," or (b) "Nationwide in . . .
scope," or (c) related to commerce "in other respects close and
substantial," could the Secretary issue an order declaring the
industry to be one affecting commerce, and thus within the purview
of the Act.
[
Footnote 5]
A number of bills have been introduced since the passage of the
Act to secure a similar exemption for daily newspapers, but none of
them has passed.
See H.R. 7340, 76th Cong., 1st Sess.; S.
4385, 76th Cong., 3d Sess.; H.R. 64, H.R. 4208, S. 1310, S. 284,
77th Cong., 1st Sess.
MR. JUSTICE MURPHY, dissenting.
I agree that to print approximately 10,000 newspapers a day and
regularly to send 45 of them, or 1/2 of 1%, out of the state is to
produce goods for interstate commerce. But I cannot agree that
Congress meant to include a business of that nature within the
ambit of the Fair Labor Standards Act of 1938.
This Court, in
Labor Board v. Fainblatt, 306 U.
S. 601,
306 U. S. 606,
stated that
"The amount of the commerce regulated is of special significance
only to the extent that Congress may be taken to have excluded
commerce of small volume from the operation of its regulatory
measure by express provision or fair implication."
Concededly, Congress has not excluded commerce of small volume
from the coverage of the Fair Labor Standards Act by "express
prohibition." But certainly the "fair implication" is one of
exclusion. On numerous occasions, we have pointed out that Congress
in this Act did not exercise the full scope of its commerce power,
Kirschbaum Co. v. Walling, 316 U.
S. 517,
316 U. S.
522-523, and that Congress plainly indicated its purpose
to leave local business to the protection of the states so far as
wage and hour problems were concerned,
Walling v. Jacksonville
Paper Co., 317 U. S. 564,
317 U. S. 570;
Phillips Co. v. Walling, 324 U. S. 490,
324 U. S.
497.
Page 327 U. S. 186
In my opinion, a company that produces 99 1/2% of its products
for local commerce is essentially and realistically a local
business. True, 1/2 of 1% of its production is for interstate
commerce, thus subjecting it to the constitutional power of
Congress when and if exercised. But that fact does not make it any
less a local business, which we have said Congress plainly excluded
from this Act.
I would therefore affirm the judgment below in this respect.