Mabee v. White Plains Pub Co

Decision Date11 February 1946
Docket NumberNo. 57,57
PartiesMABEE et al. v. WHITE PLAINS PUB. CO., Inc
CourtU.S. Supreme Court

[Syllabus from pages 178-180 intentionally omitted] Mr. David H. Moses, of Suffern, N.Y., for petitioners.

Mr. Jeter S. Ray, of Nashville, Tenn., for Administrator of the Wage & Hour Division, Department of Labor, as amicus curiae, by special leave of Court.

Mr. Elisha Hanson, of Washington, D.C., for respondent.

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 per cent was regularly out-of-state.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), 29 U.S.C.A. § 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 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.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 National Labor Relations Board v. Fainblatt, 306 U.S. 601, 607, 59 S.Ct. 668, 672, 83 L.Ed. 1014, that the operation of the National Labor Relations Act (49 Stat. 449, 29 U.S.C. § 151, 29 U.S.C.A. § 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,3 unlike the present one (Walling v. Jacksonville Paper Co., 317 U.S. 564, 570, 571, 63 S.Ct. 332, 336, 87 L.Ed. 460), regulates labor disputes 'affecting' commerce. 49 Stat. 450, 29 U.S.C. § 152, 29 U.S.C.A. § 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) 29 U.S.C.A. § 215(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 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, 140, 65 S.Ct. 161, 164.

We stated in United States v. Darby, 312 U.S. 100, 123, 61 S.Ct. 451, 461, 85 L.Ed. 609, 132 A.L.R. 1430, '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, 91, 63 S.Ct. 125, 126, 87 L.Ed. 83. That view is borne out by the legislative history of the Act. Earlier drafts had embodied the 'substantial' standard.4 These 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), 29 U.S.C.A. § 213(a)(8). Representative Creal of Kentucky proposed this exemption. He stated that 'under this bill, because 1 or 2 per cent 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.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 semi-weeklies 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 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 semi-weeklies 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, 56 S.Ct. 444, 80 L.Ed. 660. 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. National Labor Relations Board, 301 U.S. 103, 132, 133, 57 S.Ct. 650, 655, 656, 81 L.Ed. 953. And the exemption of small weeklies and semi-weeklies is not a 'deliberate and calculated device' to penalize a certain group of newspapers. Grosjean v. American Press Co., supra, 297 U.S. page 250, 56 S.Ct. page 449, 80 L.Ed. 660. 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, 57 S.Ct. 883, 81 L.Ed. 1279, 109 A.L.R. 1293; Currin v. Wallace, 306 U.S. 1, 13, 14, 59 S.Ct. 379, 386, 83 L.Ed. 441.

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 character of their work. Kirschbaum Co. v. Walling, 316 U.S. 517, 524, 62 S.Ct. 1116, 1120, 86 L.Ed. 1638; Walling vl Jacksonville Paper Co., supra, 317 U.S. pages 571, 572, 63 S.Ct. pages 336, 337, 87 L.Ed. 460. 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.

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,...

To continue reading

Request your trial
168 cases
  • Centeno-Bernuy v. Becker Farms
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • June 17, 2008
    ...an employee within the coverage of the act. Remmers v. Egor, 332 F.2d 103, 104 (2d Cir.1964), citing Mabee v. White Plains Pub. Co., 327 U.S. 178, 66 S.Ct. 511, 90 L.Ed. 607 (1946). Accordingly, in Lamont v. Frank Soup Bowl, Inc., the Court found that a family-owned eatery in the Bronx was ......
  • Walsh v. E. Penn Mfg. Co.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 17, 2021
    ...opinions, and interpretations as they "constitute a body of experienced and informed judgment." Mabee v. White Plains Pub. Co. , 327 U.S. 178, 182, 66 S.Ct. 511, 90 L.Ed. 607 (1946) (citing Skidmore v. Swift & Co. , 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944) ).Support for the actu......
  • National League of Cities v. Usery California v. Usery
    • United States
    • United States Supreme Court
    • April 16, 1975
    ...within the commerce power may not infringe individual liberties protected by the First Amendment, Mabee v. White Plains Publishing Co., 327 U.S. 178, 66 S.Ct. 511, 90 L.Ed. 607 (1946); the Fifth Amendment, Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); or the Sixth......
  • Arcara v. Cloud Books, Inc
    • United States
    • United States Supreme Court
    • July 7, 1986
    ...327 U.S. 186, 192-193, 66 S.Ct. 494, 497-498, 90 L.Ed. 614 (1946) (Fair Labor Standards Act); Mabee v. White Plains Publishing Co., 327 U.S. 178, 66 S.Ct. 511, 90 L.Ed. 607 (1946) (same); Associated Press v. United States, 326 U.S. 1, 6-7, 19-20, 65 S.Ct. 1416, 1418, 1424-1425, 89 L.Ed. 201......
  • Request a trial to view additional results
2 books & journal articles
  • Filth, filtering, and the First Amendment: ruminations on public libraries' use of Internet filtering software.
    • United States
    • Federal Communications Law Journal Vol. 53 No. 2, March 2001
    • March 1, 2001
    ...In particular, the Court allowed Arkansas to exempt newspapers and magazines from its sales tax. See Mabee v. White Plains Publ'g Co., 327 U.S. 178, 184 (1946); Oklahoma Press Publ'g Co. v. Walling, 327 U.S. 186, 194 (1946). Regan v. Taxation with Representation, 461 U.S. 540 (1983), may pr......
  • The Fiction of the First Freedom
    • United States
    • Political Research Quarterly No. 6-2, June 1953
    • June 1, 1953
    ...laws in Associated Press v. United States, 326 U.S. 1 (1945); and to the Fair Labor Standards Act in Mabee v. White PlainsPublishing Co., 327 U.S. 178 (1946); Oklahoma Press Publishing Company v. Walling, 327 186 (1946). 6 United Public Workers v. Mitchell, 330 U.S. 75 (1947). 7 Getende v. ......
4 provisions
  • 29 C.F.R. § 776.3 Persons Engaging In Both Covered and Noncovered Activities
    • United States
    • Code of Federal Regulations 2022 Edition Title 29. Labor Subtitle B. Regulations Relating to Labor Chapter V. Wage and Hour Division, Department of Labor Subchapter B. Statements of General Policy Or Interpretation Not Directly Related to Regulations Part 776. Interpretative Bulletin On the General Coverage of the Wage and Hours Provisions of the Fair Labor Standards Act of 1938 Subpart A. General How Coverage Is Determined
    • January 1, 2022
    ...of that fact, thereafter indefinitely entitled to its benefits.12 United States v. Darby,312 U.S. 100; Mabee v. White Plains Pub. Co.,327 U.S. 178; Schmidt v. Peoples Telephone Union of Maryville, Missouri, 138 F. 2d 13 (C.A. 8); New Mexico Public Service Co. v. Engel, 145 F. 2d 636 (C.A. 1......
  • 29 C.F.R. § 776.3 Persons Engaging In Both Covered and Noncovered Activities
    • United States
    • Code of Federal Regulations 2021 Edition Title 29. Labor Subtitle B. Regulations Relating to Labor Chapter V. Wage and Hour Division, Department of Labor Subchapter B. Statements of General Policy Or Interpretation Not Directly Related to Regulations Part 776. Interpretative Bulletin On the General Coverage of the Wage and Hours Provisions of the Fair Labor Standards Act of 1938 Subpart A. General How Coverage Is Determined
    • January 1, 2021
    ...of that fact, thereafter indefinitely entitled to its benefits.12 United States v. Darby,312 U.S. 100; Mabee v. White Plains Pub. Co.,327 U.S. 178; Schmidt v. Peoples Telephone Union of Maryville, Missouri, 138 F. 2d 13 (C.A. 8); New Mexico Public Service Co. v. Engel, 145 F. 2d 636 (C.A. 1......
  • 29 C.F.R. § 776.20 ''goods.''
    • United States
    • Code of Federal Regulations 2022 Edition Title 29. Labor Subtitle B. Regulations Relating to Labor Chapter V. Wage and Hour Division, Department of Labor Subchapter B. Statements of General Policy Or Interpretation Not Directly Related to Regulations Part 776. Interpretative Bulletin On the General Coverage of the Wage and Hours Provisions of the Fair Labor Standards Act of 1938 Subpart A. General Engaging In "The Production of Goods For Commerce"
    • January 1, 2022
    ...subjects of commerce were added by a Senate amendment. 19 Western Union Tel. Co. v. Lenroot323 U.S. 490. 20 Mabee v. White Plains Pub. Co.,327 U.S. 178; v. Abbye Employment Agency, 32 N.Y.S. 2d 715; Berry v. 34 Irving Place Corp., 52 F. Supp. 875 (S.D. N.Y.); Ullo v. Smith, 62 F. Supp. 757,......
  • 29 C.F.R. § 776.20 ''goods.''
    • United States
    • Code of Federal Regulations 2021 Edition Title 29. Labor Subtitle B. Regulations Relating to Labor Chapter V. Wage and Hour Division, Department of Labor Subchapter B. Statements of General Policy Or Interpretation Not Directly Related to Regulations Part 776. Interpretative Bulletin On the General Coverage of the Wage and Hours Provisions of the Fair Labor Standards Act of 1938 Subpart A. General Engaging In "The Production of Goods For Commerce"
    • January 1, 2021
    ...subjects of commerce were added by a Senate amendment. 19 Western Union Tel. Co. v. Lenroot323 U.S. 490. 20 Mabee v. White Plains Pub. Co.,327 U.S. 178; v. Abbye Employment Agency, 32 N.Y.S. 2d 715; Berry v. 34 Irving Place Corp., 52 F. Supp. 875 (S.D. N.Y.); Ullo v. Smith, 62 F. Supp. 757,......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT