In my State I know thousands and thousands of dollars have been collected in the rural parts of the State that we haven't been able to reach either by opposition of law or opposition of employers in competition; so I am not pleading the case of the trade-union movement past organized, but I am pleading the cause of the millions of people that I love and have worked with for 25 years, that they do have the assistance of Government in a helpful way, and not in a disadvantageous way; so give us back the Wagner Act and we will take care of a considerable part of this problem here.

Mr. LESINSKI. May I make an explanation to the gentlemen? Mr. Barden had the floor, and hereafter other members may have the right to ask him to yield.

Mr. BARDEN. That is all right, Mr. Chairman.

Mr. LESINSKI. When the member has the floor he has the floor, and if another man wants to ask a question, you ask the man who has the floor-the same procedure as we follow in the House.

Mr. BARDEN. That is all right, Mr. Chairman. I am glad to have the gentleman's views, and he said many things that I agree with.

Mr. Secretary, there is one other matter in here that bothered me a little bit. I have noticed, in some operations that I have been familiar with, that Christmas bonuses, and what you call Christmas presents, and so forth, you want those added to the scale of pay?

Secretary TOBIN. No; it specifically takes them out.

Mr. BARDEN. And as it is now, by interpretation, didn't you issue a bulletin or something that said that, if they expected that, it become a part of their pay

Mr. McCOMB. Some of them are, and some have been declared so by the courts. The principal bonuses that are included are the ones we call production bonuses, tied up with productivity as part of the pay to the man for his production, but we do have some that the courts have ruled on, and we have had to say they are not Christmas bonuses and should be included in the regular rate of pay.

Mr. BARDEN. I wouldn't like to see that go to the point that it would kill these incentive payments in dividends, because I argued with the owner of one concern for quite some time that he would be perfectly protected in going ahead and giving them their checks, and he wound up by deciding that, if he did do it, some of you fellows would frown on him and then if he wasn't as lucky next year he would be stuck; so the result was the workers didn't get those checks. That bothered me. I felt that they ought to have had them.

Mr. McCOMB. This bill is specifically taking care of that in that we have recommended that certain payments should not be included in the regular rate in the rule-making power that the Secretary has asked for; he could make rules which would protect that fellow.

Secretary TOBIN. If we had the rule-making power, consideration could be given to the individual case.

Mr. BARDEN. Your rule-making power is indispensable, to a certain extent. The rule-making power shouldn't extend too far. The average man who is operating a business can't tell from week to week what your rules are going to be. He must have some restricted field in which he knows what is going to happen to him, because lots of times a man must plan his business in January for November or for September, and if in this field there is somebody liable to issue an

order that could crack his nose, it doesn't tend to stabilize business, but it frustrates it.

Secretary TOBIN. I can assure you any rule-making power given to me will not be handled that way, Mr. Barden.

Mr. BARDEN. I don't believe I have known of an administrative secretary to willfully do those things, but they certainly accidentally issue a lot of orders.

Now, Mr. Secretary, with your statement in here, that bothers me considerably, because-and that is extending the activities or extending the jurisdiction

Secretary TOBIN. The coverage, extending the coverage.

Mr. BARDEN. That is a better word, Mr. Secretary, to activities affecting commerce.

Now, it has taken us about a hundred years to get some kind of a reasonable definition of interstate commerce, and I haven't made much progress in my mind in trying to settle down on what the term "affecting commerce" means. How much does it affect? Does it affect

it a little bit or a lot?

Secretary TOBIN. Well, it is broader than the term "interstate commerce."

Mr. BARDEN. That is what I know. Now, how much broader? In this act, would you say one and a half million people would be covered under the term "interstate commerce"?

Mr. McCOMB. Probably.

Mr. BARDEN. Well, we will guess a million and a half.

Mr. McCOMB. It would be more, I think.

Mr. BARDEN. What I am talking about is, where are we going? What does the term mean? You must have given it considerable thought because you are going to have to define it.

Now, what does "affecting commerce" mean? Does it mean

Secretary TOBIN. The Supreme Court has defined it, and I would rather have the lawyers who are present here give you the actual definition.

Mr. TYSON. Of course it is in both the Wagner Act and the TaftHartley Act; disputes affecting interstate commerce are covered under the two acts.

Mr. McCONNELL. May I ask a question?

Mr. LESINSKI. Does the gentleman yield?

Mr. BARDEN. Yes.

Mr. McCONNELL. Did you say "affecting interstate commerce"? Secretary TOBIN. Disputes affecting interstate commerce. The reason for the difference is because of the different purposes of the two acts the burden on interstate commerce-the theory of it is the same; however, in the Taft-Hartley and Wagner Acts they are concerned only with labor disputes.

Mr. McCONNELL. On page 6, section (n) of the bill, you go even beyond activities affecting commerce, and say:

"Activity affecting commerce" includes any activity necessary to commerce or competing with any activity in commerce, or where the existence of labor standards below those prescribed by this Act would burden or obstruct or tend to burden or obstruct commerce or the free flow of commerce.

Mr. TYSON. It is very broad.

Mr. McCONNELL. I would like to know who isn't included under such a paragraph?

85539-49-vol. 1- 3

Mr. TYSON. I think it will include a great many people and it is the object of the law to reach employees in the States which unfortunately have no State laws to protect them.

Mr. BARDEN. But, Mr. Secretary, we make enough mistakes unintentionally without making one that we have good reason to believe we are making at the time. The Constitution lays down certain language relative to interstate commerce, and regardless of what you and I may think, we are not going to change that Constitution very much, and the Court sitting over yonder is not going to permit it.

Now, what I want to know is where this term stops. Is there any limitation to it? Can your lawyers give me any clear-cut definition of it, which we should have, that would be satisfactory enough for this committee to intelligently act on the advisability of adopting it?

Secretary TOBIN. Well, Congressman Barden, I will have my legal staff give you the definition of "activity affecting commerce" as best they can do. I think there is one by the Supreme Court.

Mr. TYSON. I think the Congressman's question can be answered in legal terms, but specifically, for instance, a barber shop is probably not in here.

Mr. BARDEN. Probably not?

Mr. TYSON. Is not.

Mr. BARDEN. What are you going to tell the barber when he asks whether he is in there or not?

Mr. TYSON. He is not.

Mr. BREHM. Probably?

Mr. TYSON. I might say "probably" in being frank with you. Mr. BARDEN. I thought you would. You look like an honest man. Suppose an Administrator would get up some morning and sign an order, after just glancing at it, saying it was?

Mr. TYSON. Congressman, if I could legally define it, I would. Mr. BARDEN. You would legally sign anything. Now, I will tell you you are going to be all right under this, but if the gentleman could give me a rule, something that would satisfy my mind, it would make me more comfortable because I really think it would be wise to throw out a clause that would tend to confuse. That was one of the great troubles with the Wage and Hour Act of '38-it was very poorly drawn and placed, and the Administrator, at times, hasn't known whether he was right or wrong, and any number of people would go to the State offices and say, "Listen, here is my operation; am I under it or am I not?"

Well, they won't tell them. They wouldn't dare tell them. They would say, "You go ahead and then if we decide to shoot you, you had better duck." That doesn't help matters. It may scare some people, and they will get more employees.

Well, there is no serious damage done there except an economy cannot operate without some organized guide to go by, and I think the gentleman would make a great contribution to the committee if he would venture a very definite definition.

Mr. WEISS. Well, there is. All retail enterprises with sales of over a half millioin dollars are included, so that would exempt all those

1 See memorandum from William S. Tyson, Solicitor, to Secretary Tobin relative to scope of section 3 (n) on p. 121.

under a half million dollars, unless more than four stores are included in one organization.

Mr. BARDEN. Well, that is in the old act.
Secretary TOBIN. No; they are not covered.

Mr. BARDEN. I say they are out.

Secretary TOBIN. Yes. Now, any retail establishment with over a half million dollars in sales is included, so that will draw the distinction so, even though an establishment with under a half million dollars of annual sales would be included in commerce, they wouldn't be included in the act because they are exempt, and any organization, any combination of two or three stores, or the owner of a single store, would be exempt if their annual sales are under a half million dollars; but in excess of that, they are included whether in one corporation or one entity.

Mr. BARDEN. I won't pursue that, because, without meaning to be impolite, I think both of us are a little wool gathering on that. We can't be very definite on it, but I may say, if your attorney will furnish us a very definite definition of that term, I think he will make a great contribution, and later on the Supreme Court will appreciate it.

Mr. TYSON. If I may answer that, we have tried, in this definition, to be as definite as we could legally, without going into examples, and what is and what is not under it.

This definition is intended to define the scope to the furthest reaches of the commerce power.

Mr. WEISS. For the purpose of

Mr. BARDEN. I don't think that is so obvious until it doesn't require

Mr. TYSON. There shouldn't be much doubt as to whether a man is covered or not.

Mr. BARDEN. Where are the furthest reaches of the Commerce Act? Mr. TYSON. It is very difficult to draw lines.

Mr. BARDEN. But in business, you must draw the line. Are you or not?

Mr. TYSON. I mean the Secretary, under the rule-making authority, may be able to give a definite answer where in the past he had no authority.

Mr. BARDEN. He says he is going to have to get the answer from you. I want to get it from you.

Mr. TYSON. I said the barber shop would not be under it, nor the billiard parlor.

Mr. BARDEN. Is that the way you are going to give the ruling to the Secretary-everything except the barber shops?

Mr. TYSON. No; I can't weigh the merits of every situation that exists in this country.

Mr. BARDEN. I am not so concerned with who is in it or who is not. Whatever we say is the minimum, I want it said. I am not so concerned with that; I am concerned with orderly procedure.

Mr. TYSON. We are, too.

Mr. BARDEN. I think Congress ought to do something besides throwing out generalities. You fellows are insulated up there, behind walls on Pennsylvania Avenue, and we have to go down and look the folks in the eye, and one of them may walk up and look at you and say, "What do you mean by that?" Then what?

Secretary TOBIN. I think your problem is taken care of by the half million dollars of annual sales and four establishments. So I think you are pretty well covered there.

Mr. BARDEN. I don't know about that. There are some of those I do not want let out, to be perfectly frank with you, because I can recall some that ought not to bet let out, and I am concerned in protecting some of my folks, too.

Secretary TOBIN. If you lower the figure, I will enforce the law at any figure you establish.

Mr. BARDEN. If you will give me the limitations of that term, we will be getting along down the road.

Secretary TOBIN. Thank you, Congressman.

I

Mr. LESINSKI. Gentlemen, I want to make an announcement. have secured the big caucus room on the third floor for this afternoon, and the hearing will go on there from 2 o'clock on.

Mr. KELLEY. Mr. Secretary, to explore the relationship of industry to collective bargaining, where you have employees organized, and they complete a contract with their employer, there would be no invasion by that industry committee over that contract, would there?

Secretary TOBIN. Only under the circumstances that, say, a wage level was established at 80 cents in cotton textiles, and a minimum wage was established that would be a dollar, then I would say they would have to go to the dollar level but I think you will find few situations of that character.

Mr. KELLEY. You mean where the industry committee had shown that the wage level in that industry was a dollar?

Secretary TOBIN. Yes.

Mr. KELLEY. And a contract had been arrived at by a company in that industry by collective bargaining at 80 cents, then the industry committee would enter the negotiations?

Secretary TOBIN. No. The industry committee would make a finding as to the proper minimum wage rate to be paid in the industry. The Secretary would then, if he found the rate to be in accordance with the statute, make a proclamation to that effect and that would be the minimum wage that could be paid in that industry in any part of the United States of America.

Mr. KELLEY. Suppose a contract had been arrived at before the industry committee had set that?

Secretary TOBIN. At a lower level?

Mr. KELLEY. Yes; say 80 cents. You would have to wait until the contract expired, wouldn't you?

Mr. McCOMB. You mean under the contract with the union?

Secretary TOBIN. The question is that, in the event that an industry committee established a rate of a dollar an hour, and there was an existing contract between management and labor at 80 cents an hour, what would the wage rate be? And my answer is then the decree would supersede the contract, and the rate would be $1.

Mr. BREHM. Isn't that establishing industry which had bargaining through the back door?

Secretary TOBIN. The situation will rarely occur because the organized rate will be higher than the minimum.

Mr. KELLEY. I agree with you there.