"Employer" is defined to include any person acting directly or indirectly in the interest of an employer in relation to an employee, but does not include the United States or any State or political subdivision of a State, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such a labor organization.

"Employee" is defined to include any individual employed or suffered or permitted to work by an employer. In the bill as passed the Senate the various exemptions from the provisions of the act were contained in the definition of employee. The committee amendment (sec. 11) contains a separate section dealing with exemptions, which will be discussed below.

"Agriculture" is defined to include farming in all its branches, and among other things to include the cultivation and tillage of the soil, dairying, the cultivation, growing, and harvesting of any agricultural or horticultural commodities, the raising of livestock, bees, foxes, or poultry, and any practices performed by a farmer or on a farm as an incident to such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.

"Employee employed in agriculture" is defined to include individuals employed within the area of production engaged in storing for the farmer, preparing (but not commercial processing), or packing agricultural or horticultural commodities in their raw, natural, or dried state. It does not include employees of transportation contractors engaged in transportation of farm products from farm to market. The definitions of "agriculture" and "employee employed in agriculture" are important in connection with the exclusion of employees in agriculture from all the provisions of the committee amendment.

"Industry" is defined to mean a trade, business, industry, or branch thereof, or group of industries in which individuals are gainfully employed.

"Industry affecting commerce" is defined to mean an industry with respect to which an order issued under section 6 is in effect. The application and effect of this definition will be discussed below in connection with the explanation of section 6.

"Employer engaged in commerce" is defined to mean an employer in commerce, or an employer engaged, in the ordinary course of business, in purchasing or selling goods in commerce. Under this defini

tion purely local businesses are excluded from the operation of the act. Even businesses which do make purchases or sales of goods in commerce are excluded if such purchases or sales are casual and do not constitute a settled course of business practice.

"Secretary" is defined to mean the Secretary of Labor.

"Oppressive child labor" is defined as a condition of employment under which (1) any employee under the age of 16 years is employed by an employer (other than a parent or a person standing in place of a parent employing his own child or a child in his custody under the age of 16 years in an occupation other than manufacturing or mining) in any occupation, or (2) any such employee between the ages of 16 and 18 years is employed by an employer in any occupation which the Chief of the Children's Bureau shall from time to tire find and by order declare to be particularly hazardous for the employment of such children or detrimental to their health or well-being.

Oppressive child labor is not deemed to exist by virtue of the employment in any occupation of a person with respect to whom the employer shall have on file a certificate issued and held pursuant to the regulations of the Chief of the Children's Bureau certifying that such person is above the oppressive child-labor age. The Chief of the Children's Bureau is to provide by regulation or by order that the employment of employees of or above the age of 14 but under the age of 16 in occupations other than manufacturing and mining shall not be deemed to constitute oppressive child labor if and to the extent that the Chief of the Children's Bureau determines that such employment is confined to periods which will not interfere with schooling and to conditions which will not interfere with health and well-being.

MINIMUM WAGES

Section 4 of the committee amendment provides that every employer engaged in commerce in an industry affecting commerce must pay during the first year (computed from the effective date of the orginal order issued under section 6 with respect to the industry) each employee employed by him a wage at a rate not less than 25 cents an hour, and during each succeeding year increase such wage 5 cents an hour until the wage reaches 40 cents an hour. Hence the 40-cent rate in a particular industry will be reached at the end of 3 years from the effective date of the order under section 6 with respect to the industry.

MAXIMUM HOURS

Section 5 of the committee amendment provides that no employer engaged in commerce in an industry affecting commerce shall employ any of his employees for a workday longer than 8 hours, or during the first year (computed from the effective date of the order issued under sec. 6 with respect to the industry) shall employ any of his employees for a workweek onger than 44 hours. In each succeeding year the employer is required to reduce the weekly hours by 2 hours until a 40-hour workweek is reached. Hence the 40-hour workweek in a particular industry will be reached at the end of 2 years from the effective date of the order under section 6 with respect to the industry. No employee is to be deemed to be employed in violation of this section if he receives additional compensation for his overtime employment at the rate of one and one-half times the regular hourly rate at which he is employed, or times the rate applicable under or pursuant to the act, whichever is higher.

INDUSTRIES AFFECTING COMMERCE

Section 6 of the committee amendment directs the Secretary, as soon as practicable after the enactment of the act, to determine the relation of the various industries to commerce. The Secretary is to give due notice to interested persons and an opportunity to be heard. If in the case of any industry the Secretary finds that the activities of the industry are Nation-wide in their scope, or that the industry is dependent for its existence upon substantial purchases or sales of goods in commerce and upon transportation in commerce, or that the relation of the industry to commerce is in other respects close and substantial, the Secretary is required to issue an order declaring the

industry to be an industry affecting commerce. The order is to take effect at such time not more than 120 days after it is issued as the Secretary designates in the order.

Apart from the investigations and inspections provided for in section 9 of the committee amendment, and the powers of the Secretary with respect to the employment of learners, apprentices, and handicapped workers, which will be discussed below, the only function of the Secretary of Labor is to determine the relation of the various industries to commerce It will be recalled that in the National Labor Relations Act cases in the Supreme Court, much emphasis was put upon the relation of the particular industry involved to interstate commerce. Hence in the Jones and Laughlin case (301 U. S. 1, at pp. 41-43) the Court, speaking through the Chief Justice, said:

When industries organize themselves on a national scale, making their relation to interstate commerce the dominant factor in their activities, how can it be maintained that their industrial labor relations constitute a forbidden field into which Congress may not enter when it is necessary to protect interstate commerce from the paralyzing consequences of industrial war?

The Court then goes on to discuss the effect which the refusal to bargain collectively has had on interstate commerce. This effect was in the mind of the Court such an outstanding fact in the history of labor disturbances that it was said to be "a proper subject of judicial notice" and to require no citation of instances. The Court then went on to say (p. 43):

These questions have frequently engaged the attention of Congress and have been the subject of many inquiries. The steel industry is one of the great basic industries of the United States, with ramifying activities affecting interstate commerce at every point. The Government aptly refers to the steel strike of 1919-20 with its far-reaching consequences. The fact that there appears to have been no major disturbance in that industry in the more recent period did not dispose of the possibilities of future and like dangers to interstate commerce which Congress was entitled to foresee and to exercise its protective power to forestall. It is not necessary again to detail the facts as to respondent's enterprise. Instead of being beyond the pale, we think that it presents in a most striking way the close and intimate relation which a manufacturing industry may have to interstate commerce

* *

Similarly, in the Friedman-Harry Marks Clothing Company case (301 U. S. 58), the Court, at page 72, sets out in detail the findings of the Labor Relations Board with respect to the clothing manufacturing industry and its relation to interstate commerce:

The Board made elaborate findings with respect to the clothing manufacturing industry and its relation to interstate commerce. Among these findings are the following: The men's clothing industry is among the 20 most important manufacturing industries in this country. Fifty percent of the manufacturing establishments are in the State of New York; most of the remainder are in Pennsylvania, Maryland, New Jersey, Illinois, Massachusetts, California, and Ohio. Since the men's wear fabrics are produced largely in the New England States, the goods must be transported from the mills across State lines to the fabricating establishments in the States above mentioned. The manufactured clothing is sold throughout the Nation, only about 48 percent of the total sales being made in the seven States which produce about 90 percent of the total men's clothing. The findings describe the methods of sales, the New York market being the largest in the country. The Board concluded: "The men's clothing industry is thus an industry which is nearly entirely dependent in its operations upon purchases and sales in interstate commerce and upon interstate transportation. There is a constant flow of raw wool from the western States and foreign countries to the mills of New England where it is transformed into men's wear fabrics, thence to the sponging and shrinking plants of New York and Philadelphia, then, joined by the other necessary raw materials, to the fabricating factories of the Middle

* The industry itself

Atlantic States for manufacture into clothing. * has no doubt as to its status, for the executive director of the New York Clothing Manufacturers Exchange, Inc., which represents about 250 manufacturers doing 70 percent of the total business in the New York market, stated in his affidavit that the industry is conducted as an interstate business and is entirely dependent upon interstate commerce."

For the reasons stated in our opinion in National Labor Relations Board v. Jones & Laughlin Steel Corp., ante, page 1, we hold that the objections raised by respondent to the construction and validity of the National Labor Relations Act are without merit.

Whether the activities of a particular industry are such as to bring that industry within the regulatory power of Congress depends upon facts and is necessarily a question of degree in each case. Hence, it is necessary to have someone determine those facts. Two courses were open to the committee. The committee could have provided that the facts in each particular case be determined by the trial court in a criminal prosecution for violation of the act, or it could have confided the determination of these facts in the first instance to an administrative officer and provided for court review of the order declaring the facts found to exist. Had the first course been adopted, the bill would necessarily have been so indefinite that no employer would know whether or not he was subject to the act, and then, too, each criminal prosecution for violation of the act would have been prolonged indefinitely, inasmuch as the great bulk of the testimony would be directed to the relation of the industry, in which the employer concerned was engaged, to interstate commerce. Hence, the second course was adopted. Inasmuch as there are provisions for court review of the order of the Secretary finding a particular industry to be one affecting commerce, the validity of such an order may be questioned only in such review proceedings, and may not be questioned collaterally in a criminal proceeding involving a violation of the act, although, of course, the effect, under the Constitution, of the order and of the Secretary's finding can always be questioned in any proceeding.

Once the Secretary issues an order under section 6 with respect to a particular industry, the Secretary has discharged his functions under the act, and thereafter the wage-and-hour provisions operate automatically on all employers in the industry who are engaged in

commerce.

ATTENDANCE OF WITNESSES

Section 7 of the committee amendment provides that for the purpose of the hearing to determine the facts upon which an order under section 6 is based, the provisions of the Federal Trade Commission Act relating to the attendance of witnesses and the production of books, papers, and documents, are to be applicable to the jurisdiction, powers, and duties of the Secretary. This section is necessary, since if any effect is to be given to the testimony at the hearing before the Secretary, or to the Secretary's findings upon that testimony, the Secretary must be given power to compel testimony and put the witnesses under oath.

COURT REVIEW OF ORDERS

Section 8 of the committee amendment provides for the review of an order issued under section 6 by any person aggrieved thereby, in the circuit court of appeals for the circuit in which is situated his principal

place of business, or in the Court of Appeals of the United States for the District of Columbia. The court is given exclusive jurisdiction to affirm, or if it is not in accordance with law to modify or set aside, the order in whole or in part.

INVESTIGATIONS, INSPECTIONS, AND RECORDS

Section 9 of the committee amendment provides that the Secretary may investigate and gather data regarding the wages, hours, and other conditions and practices of employment in any industry subject to the act, and may enter and inspect such places and records, question such employees, and investigate such facts, conditions, practices, or matters as the Secretary may deem necessary or appropriate to determine whether any person has violated any provision of the act, or which may aid in the enforcement of the provisions of the act. Except in connection with investigations and inspections relating to the employment of oppressive child labor, the Secretary is to utilize the Bureau of Labor Statistics for all investigations and inspections. Any information which the Secretary acquires under this section will of course have to be transmitted to the Department of Justice, inasmuch as the Secretary is given no power of enforcement. The committee deemed this section to be extremely important, inasmuch as it was brought to the attention of the committee that a very small percentage of the violations of the WalshHealey Act were reported by the employees concerned, but on the contrary most of the violations were discovered only upon investigation and inspection. This situation is bound to exist, for the reason that no employee wishes to risk the loss of his job by making a complaint against his employer.

The Secretary, for the purpose of making the investigations and inspections above referred to, is authorized, with their consent, to utilize the services of State and local agencies and their employees, and to reimburse such State and local agencies and their employees for services rendered for such purposes.

Every employer subject to the act or to any order thereunder is required to make, keep, and preserve such records of the persons employed by him and of the wages, hours, and other conditions and practices of employment maintained by him, and to preserve such records for such periods of time, and to make such reports therefrom to the Secretary as the Secretary shall prescribe by regulation or order.

CHILD-LABOR PROVISIONS

Section 10 of the committee amendment contains the child-labor provisions which were adopted in the Committee of the Whole House on the state of the Union when the bill was under consideration prior to its recommital. It provides that no producer, manufacturer, or dealer shall ship or deliver for shipment in commerce any goods produced in an establishment situated in the United States in or about which within 30 days prior to the removal of such goods therefrom any oppressive child labor has been employed. A prosecution and conviction of a defendant for a shipment or delivery for shipment of any goods under the conditions prohibited in this section is to be a bar to any further prosecution against the same defendant