Secretary TOBIN. That would be a factor, Senator, but I would have to say in all frankness that I would consider it my responsibility to see to it that anyone who was affecting interstate commerce, affecting the price of goods by low wages in the movement of goods in interstate commerce-that is, through the clause "affecting commerce"--that in those cases you would really have to enforce the law. Senator PEPPER. Of course, you will have to enforce the law, but, after all, "affecting commerce" is a matter of substantiality, isn't it? Secretary TOBIN. Yes.

Senator PEPPER. You do not mean every remote or technical "affecting commerce" is to be subject to this coverage. You mean, I assume, that the law is intended to include those who are substantially exerting an effect upon the stream of interstate commerce. Secretary TоBIN. That would be correct.

Senator PEPPER. So that is a matter of degree, to be determined through the exercise of sound judgment.

Senator THOMAS. I believe also, at this point, that in the growth and development of the commerce of the United States, the habits of commerce itself, as well as decisions as to what constitutes interstate commerce, would be controlling factors under any kind of rule of reason; therefore, you cannot put your finger on any theoretical case which is going to be absolute when the case becomes an actuality.

I imagine that any constitutional development from the Gibbons and Ogden case, at the beginning of our legal definitions, recognizing the difference between interstate and ordinary commerce-and probably in the whole series of legal definitions there has not been anything inconsistent with the spirit of the original case-but with the growing tendencies of our Government in treating commerce, the habits of commerce itself, will, of course, affect the interpretation of a given case in 1959 quite differently from the way in which the habits of commerce affected the original case.

I think in any type of legislation of this kind, legislation which guides the people of our country into habit-forming notions is bound to be extremely elastic as it goes on. If the definitions become too tight, we probably will have the clash which ends in trouble.

Senator DONNELL. Mr. Chairman, may I ask the Secretary whether or not he has taken occasion to make any estimate as to how many additional employees would be brought under the Fair Labor Standards Act if S. 653 be adopted?

Mr. WEISS. About seven million more.

Senator DONNELL. More than are now under the law?

Mr. WEISS. Through "affecting commerce" and through all changes in exemptions.

Senator DONNELL. How many are now covered by the Fair Labor Standards Act?

Mr. WEISS. About 22 or 23 million.

Senator AIKEN. What part of that 7 million is receiving less than 75 cents an hour at the present time?

Mr. WEISS. About a million and a quarter.

Senator AIKEN. Add that to a million and a half who are covered, but are receiving less than 75, making two and three-quarters million that would be assured an increase in pay rate.

Mr. WEISS. That is correct.

Senator DONNELL. I was interested, Mr. Chairman, in the question asked by Senator Aiken a few minutes ago as to whether the Secretary could tell us any instance that does not affect commerce.

I am wondering if the Secretary thinks of any illustration at the moment-any activity whatsoever in which employers and employees are engaged-which does not affect interstate commerce.

Secretary TOBIN. Domestic workers. It is possible-for instance, I can see where if the court wanted to broaden its interpretation, it would say that because the sheets might have come from across a State line in the case of a chambermaid in the house and the material used by the cook in the kitchen, there is an effect on interstate com

merce.

Senator TAFT. What is the difference between washing shirts at home and washing shirts in the laundry?

Senator AIKEN. The difference is a matter of keeping the buttons on. [Laughter.]

Secretary TOBIN. Your effect on commerce is trivial when you do it in the home. Under the interpretations that have been made by the Department for straight domestic laundries, they are not covered.

Senator PEPPER. But it is the same difference between making an article that you weave on an old-fashioned spinning wheel in the home and setting up a big textile mill to weave many articles. It is a matter of degree.

Secretary TOBIN. That is correct.

Senator DONNELL. Has it not been held in effect that a man who washes windows in a building in the city of New York is engaged in an industry affecting interstate commerce?

Secretary TOBIN. I think that is on the ground that the people who occupy the building for whom he is cleaning are engaged in production for interstate commerce.

Senator DONNELL. Take your home. If a man is a traveling salesman, is engaged in interstate commerce, wouldn't the work of the domestic therein employed contribute to his efficiency and perhaps even his existence?

Senator PEPPER. Are you assuming his office is in his home?

Senator DONNELL. No; his food is there and he has to have his clothes washed and he has to have the buttons kept on his shirts. I am not arguing that is, in fact, affecting interstate commerce, but the courts have held that the window washer at Forty-first and Broadway in New York City is engaged in interstate commerce. That is a fact, is it not? Haven't they held that in effect?

Mr. TYSON. That he was engaged in an occupation necessary to the production of goods for interstate commerce.

Senator DONNELL. It would affect interstate commerce if it were necessary for the production of goods for interstate commerce. Mr. TYSON. The window-washing case; yes, sir.

Senator DONNELL. Would it be equally true, when you talk about domestic help, that the person who cooks the food, keeps the house clean, looks after the washing of the man's clothes, does carry on activities which are necessary to interstate commerce in which the recipient of those services is engaged? Isn't that true, logically?

Secretary TOBIN. Yes, sir, but as a matter of common sense it is highly improbable that any Secretary of Labor or Administrator

would ever proceed to enforce the law on the ground that the condition you describe affected commerce.

Senator DONNELL. Don't you think, Mr. Secretary, that only a few years ago it would have been regarded as equally absurd and ludicrous to say that the attempt would be made to consider the window washer as being engaged in an industry necessary to interstate commerce? The Sixth Circuit Court of Appeals thought so.

Secretary TOBIN. I concede the thinking of the courts at that time -but it did affect commerce to a greater extent than ever before because of the tremendous changes in transportation which have occurred. No doubt what would have affected commerce so trivially 25 or 35 or 40 years ago, before the advent of the motor truck, today affects commerce considerably. Then with the advent of the airplane and the terrific point-to-point movement by that method, that which affects commerce was made still broader in scope.

Senator AIKEN. Shouldn't a man who is washing windows on the sixteenth floor be entitled to the minimum wage?

Secretary TOBIN. That would be true, but I would like for the good of the economy to see the man who washed those windows be protected by a law that would give him more than a minimum of 40 cents an hour.

Senator TAFT. Doesn't that come to this: If we change this law to cover everything affecting commerce and then if we give you the power to make regulations, holding the views you do and desiring to extend the minimum wage to everybody, do we not give you the power to put anybody, practically, under the law that you want?

Secretary TOBIN. If I exceeded my authority, the courts would overturn me, and common sense would have to be applied in the application of the law, just as common sense has been applied by boards that have such powers at the present time.

Now the present Administrator and his predecessor have never included domestic laundries under the commerce clause in the Fair Labor Standards law.

Senator TAFT. I suggest they have been constantly pressing the definition of interstate commerce in the administration of this law to the limit, and with these additional powers there will be no distinction. Everybody who is working in this country, except where we have specifically exempted him, will be covered. It seems that is the only protection, if these two features go into the law unless we want to have the law applied to everybody in the United States.

I am not saying what we should or should not do, but do you not think that is the necessary effect of those broadening provisions?

Secretary TOBIN. It is very broadening, I agree, and as I have stated, I would like to see a minimum-wage law that would cover a great many more workers than are covered at the present time. Certainly, if a window washer were paid 75 cents an hour, he would not be overpaid for the hazardous work that he has to perform.

Senator DONNELL. Don't you regard it of importance, however, that the Congress should follow the constitutional limits of the Federal power, rather than to try to extend legislation by it enacted to matters purely within State jurisdiction and legislative power? Isn't that of some importance?

Secretary TOBIN. I would like to cite the wording "affecting commerce" in the labor relations law that was passed in the last Congress.

Senator DONNELL. I wanted to know your opinion as to whether or not it is of any importance to preserve the line of Federal jurisdiction in legislation as distinguished from the line of matters appropriately to be kept to State legislation. That is of importance, is it

not?

Secretary TOBIN. I will have to go back into history in order to answer that question. It can't be answered yes or no.

The division of authority granted at the time of the writing of the original Constitution was perfectly appropriate at that time, but you have seen the courts change their thinking down through the years as the economy of the country has changed. I would want to see the Congress of the United States broaden any law that would help stabilize the economy to the point where it would contribute toward the stabilization of the economy. I would not want to see exempted any phase of the economy that otherwise would adversely affect the

economy.

In other words, in the delegation of powers there should be an attempt in the light of today's complicated economic picture to have an approach comparable to that of the founding fathers when they gave to the Federal Government that which can best be handled by the Federal Government and to the States that which can best be handled by the States.

Senator DONNELL. That isn't what it says. Secretary TOBIN. In broad language. Senator DONNELL. I wouldn't agree. What it does it set forth certain things which are given to the Federal Government, doubtless with the thought in mind that it was best to have the Federal Government handle those matters, but powers which are not given by the Constitution to the Federal Government are retained by the States or by the people.

Secretary TOBIN. That is correct.

Senator DONNELL. Leaving aside for the moment the contents of S. 653, would you consider that an employee engaged in agriculture is engaged in an activity affecting interstate commerce?

Secretary TOBIN. I definitely would, but he is exempt under the law. Senator DONNELL. I understand he is exempt. The very fact that he is exempt shows that the framers of this act consider him to be engaged in an activity affecting interstate commerce and consider it necessary to exempt him.

Secretary TOBIN. That is correct, but that issue arose as far back as 1793 in Shay's Rebellion over the question of whether the Federal Government had the right to tax the grain turned into whiskey or whether it should be tax-free.

Senator TAFT. I suggest that had nothing to do with interstate

commerce.

Secretary TоBIN. That was the contention of those who were in the rebellion.

Senator TAFT. The power to tax is entirely separate.

Senator PEPPER. The present minimum-wage law applies to those engaged in the production of goods for commerce. A farmer growing food or cotton that is going to be sent into the channels of interstate commerce is covered by the present law unless specifically exempted, so that isn't a new question. He would be covered. He is engaged in the production of cotton, for example, to be shipped out of the

State or out of the country. He would be covered in the production of goods for commerce unless he were exempt. This is not a new principle.

Senator DONNELL. I haven't said it was new. My point was along this line, that by the extension under this new bill of its application to matters affecting interstate commerce, that such is obviously a very great extension, involving, as I understand this gentleman at the end of the table to say, about 7 million persons.

That is to say that, plus the exemption provisions of the statute. Is he able to tell us, by the way, how many of that 7 million are brought under the operation of the act by reason of the change from the language appearing in the present act: "is engaged in commerce or in the production of goods for commerce", to the language, "engaged in matters affecting interstate commerce"?

Mr. WEISS. Leaving exemptions as they are, I would say about 2,500,000.

Senator DONNELL. Has there been any computation made along that line to find out how many are brought in by the change from this language about commerce, without repeating it all?

Mr. WEISS. I think it is 2.6 million by the coverage language alone if you left the exemptions as they were.

Senator DONNELL. I wonder if the Secretary could have inserted at this point, the best estimates of the Department as previously or presently made, showing how many persons are added to the coverage of the act by reason of the change of the provision from the present act providing that every employer shall pay to each of his employees engaged in commerce or in the production of goods for commerce, the change-over to the language in substance that the act applies to employees engaged in any activity affecting commerce. Could you insert those figures for us in the record?

Senator TAFT. Can you make a whole table with all the exemptions up and down, the effect of the exemptions?

Senator DONNELL. That would be fine, and it should be inserted at this point.

Senator PEPPER. Very well, it will be inserted at this point. (Subsequently pursuant to the foregoing colloquy, the Administrator of the Wage and Hour and Public Contracts Division, Department of Labor, addressed Senator Pepper as follows:)

Hon. CLAUDE PEPPER,

United States Senate, Washington, D. C.

APRIL 15, 1949.

DEAR SENATOR PEPPER: The Secretary has asked me to transmit to you information on changes in coverage and exemptions under S. 653 and the effects of increasing the minimum, in response to questions asked of him in the course of his testimony before your subcommittee on amendments to the Fair Labor Standards Act.

Tables are enclosed showing the number of employees to whom the minimum wage and overtime provisions of the act now apply, by industry, and the section of the present act under which employees in various industries are now exempt from both the minimum wage and overtime exemptions. Another table enclosed shows the number of employees brought within the scope of the minimum-wage provision and the overtime provision of S. 653 as a result of changes in coverage and changes in exemptions. This table shows, to the extent that available information permits, the separate effects of coverage changes and exemption changes. Enclosed also are tables prepared by the Bureau of Labor Statistics in 1947 on the distribution of production workers according to average hourly earnings for all manufacturing combined and for various manufacturing industries separately, and a similar table for production workers in all manufacturing combined as of