Guiseppi v. Walling

Decision Date27 June 1944
Docket NumberNo. 361-363.,361-363.
Citation144 F.2d 608
PartiesGUISEPPI et al. v. WALLING, Administrator of the Wage and Hour Division, United States Department of Labor. MARETZO et al. v. SAME. GEMSCO, Inc., et al. v. SAME.
CourtU.S. Court of Appeals — Second Circuit

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Douglas B. Maggs, Archibald Cox, and Louis Sherman, all of Washington, D. C., Irving Rozen, of New York City, and Kenneth Meiklejohn and Faye Blackburn, both of Washington, D. C., for respondent.

Landau & Friedman, of New York City (Solomon S. Friedman, of New York City, of counsel), for petitioners, Josephine Guiseppi et al.

Brower, Brill & Tompkins, of New York City (Ilo Orleans and Coleman Gangel, both of New York City, of counsel), for petitioners Mildred Maretzo et al.

Weisman, Quinn, Allan & Spett, of New York City (Samuel S. Allan and Seymour D. Altmark, both of New York City, of counsel), for petitioners Gemsco, Inc., et al.

Kraushaar & Kraushaar, of New York City (Meyer Kraushaar, of New York City, of counsel), for Lidz Brothers, Inc., amicus curiae.

Erwin Feldman, of New York City, for Harlem-Adler Co., Inc., and Schner-Block Company, amicus curiae.

Before L. HAND, SWAN, and FRANK, Circuit Judges.

FRANK, Circuit Judge.

1. Our starting point is this: Without the prohibition of home-work contained in the order of the Administrator the Act, in its application to this industry, will be unenforcible and will become virtually a dead letter. For so it was found as a fact by the Administrator, to whom the Act assigns its enforcement.2 And the truth of his findings petitioners cannot here dispute, since they do not assert that those findings are not supported by substantial evidence heard at the Administrator's hearing. At most, some of the petitioners cite a part of the evidence which is at variance with the findings but make no effort to show that there was not other contrary evidence of a substantial character. Moreover, as the printed supplements to their briefs, filed under our Rule 22, do not contain all the evidence, we must assume that, if we were to read all of it, the findings would be amply justified.3 We must, too, take those findings "at their face value," although the Act did not require the Administrator to make them.4 Indeed, assuming for the moment that, if necessary to make the statute effective, the Act conferred on him the power to issue such a regulation, there is a "presumption of the existence of facts justifying its * * * exercise."5

2. Notwithstanding that, on this record, petitioners are obliged to confess that the wage order will fail without the home work prohibition, they assert that the Administrator had no power to issue it. Faced with the provisions of § 8(f) — which authorize him to insert in wage orders issued pursuant to § 8 "such terms and conditions as" he "finds necessary to carry out the purposes of such orders, to prevent the circumvention * * *, and to safeguard minimum wage rates established therein"petitioners say that, although on the facts here the elimination of home work is perhaps within that language, the regulation is so sweeping in its consequences that, had Congress intended to authorize it, the statute would have dealt with that subject specifically as it did with child labor in § 12. But in § 12 Congress dealt with child labor as an independent matter, completely eliminating the employment of minors in the affected industries because of the socially and economically undesirable character of such employment and without regard to the effect on the wage rates and hours of adults. Here the Administrator has prohibited home work not at all on the ground of its inherent undesirability but solely as a means of preventing the circumvention or evasion of an order prescribing adult wage rates. Moreover, doubtless having in mind the provision of § 8(b) that a wage order must "not substantially curtail employment in the industry," the Administrator has made a finding (which we must accept as true) that the home work regulation will have no such effect; the findings show that its consequences to the employers and employees is not as drastic as petitioners assert in their briefs. This is not a case, then, where an effort is being made to utilize § 8(f) as a subterfuge to achieve an independent end outside the scope of the Act; the regulation here is a means of accomplishing the purpose of an authorized wage order by stopping evasions of that order, and the Administrator in § 8(f) was expressly empowered to use means of that kind.6 Nor, in view of the Administrator's findings, can it be said that this is a case where the means are so disproportionate to the authorized end that they cease to be means except in form and in truth become an independent end not contemplated in the Act.

Addison v. Holly Hill Fruit Products Co., Inc., 64 S.Ct. 1215, 1221, is not contrary to our conclusion. There the Court, interpreting one of the several specific exemptions from the Act, noted that those exemptions were "catalogued with particularity," and said: "Exemptions made in such detail preclude their enlargement by implication."

3. Petitioners, however, maintain that the amendment to the Act, in 1940, which added § 6(a)(5), with its specific reference to homework in Puerto Rico and the Virgin Islands, shows that Congress denied power elsewhere with respect to that subject. That argument cannot stand up; for the legislative history of § 6(a)(5) discloses that it was added to meet the peculiar economic conditions existing in Puerto Rico and the Virgin Islands; it might better be argued, indeed, that Congress found it necessary to amend the Act by adding that subsection precisely in order to limit the exercise of that power theretofore existing, before that amendment, with respect to those and all other areas covered by the Act.

4. Petitioners further contend that the legislative history of § 8(f) demonstrates that Congress did not intend thereby to delegate any authority concerning homework. That history, briefly told, is as follows: The Senate bill, as reported by the Committee in charge, provided that all minimum wage rates and wage differentials should be established by a Board through the issuance of labor standard orders. With respect to such orders the Board was given powers in a provision substantially the same as § 8(f) of the Act except that after the word "conditions" there was a parenthetical clause "(including the restriction or prohibition of such acts or practices)." On the floor, an amendment was adopted, without comment or objection, inserting in the parentheses the words "industrial homework." The original House bill, which was much the same as the Senate bill, included this same provision containing the matter in parentheses. This bill, however, was recommitted. The House Committee then reported a new bill which contained no provision for wage orders but established fixed minimum wages, and included no provision resembling § 8 (f), i. e., for the prevention of circumvention or evasion. This substitute bill (with modifications not relevant here) passed the House. In the Conference Committee a compromise was made between the Senate and House bills which resulted in the present Act, with § 6 containing fixed wage rates subject to acceleration as provided in § 8. Neither the Conference Report nor the subsequent debates discussed any reasons for omitting the matter in the parentheses from the provision which now appears as § 8(f). We see nothing in that ambiguous history disclosing an intention to eliminate from § 8(f) the power to prohibit home work if that prohibition is necessary to prevent circumvention or evasions.

Cudahy Packing Company v. Holland, 315 U.S. 357, 62 S.Ct. 651, 86 L.Ed. 895, is not in point. True, there, the Court referred to the fact that authority to delegate the subpoena power, expressly granted in the Senate bill, had been rejected by the Conference Committee; but, as the Court pointed out, the significance of that fact was that the Conference Committee substituted a provision giving the Administrator the subpoena power conferred upon the Federal Trade Commission, and that agency, and other agencies upon which like power had been conferred, had never theretofore construed it to include the right to delegate the issuance of subpoenas; the Court also said that, if the right to delegate the subpoena power were implied, then necessarily there would be a similar implication as to all the functions assigned by the statute to the Administrator, a conclusion which the important nature of several of those functions precluded.

5. But petitioners assert that, even granting that § 8(f), taken alone, would include the power to issue the home work order, other provisions of the Act show that Congress could not have intended to authorize so extensive a regulation. The argument runs thus: § 8(f), by its terms, restricts the Administrator's authority to that of annexing "terms and conditions to "orders" issued under § 8; no similar power is given him as to wage rates automatically established under § 6 when no § 8 order is operative; by § 8(e), all orders (except in unusual circumstances) expire in October, 1945. If, then, say petitioners, § 8(f) were construed to authorize the homework prohibition here, that prohibition would expire in 1945. It is unreasonable to believe, argue petitioners, that Congress intended that so extensive a prohibition should be in effect for a period of at most seven years (in this case a little more than a year), that home work could be banned during but a small span and not for the long future. Accordingly, petitioners urge, as § 8(f) applies only to orders, it must, for the sake of consistency, be construed not to include so extensive a power.

That argument proves too much. It cannot stop with eliminating from § 8(f) the authority to forbid home work. Pushed to its logical...

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