173

Opinion of the Court.

this case had been rendered by employees of respondent's customers engaged in the production of goods for interstate commerce, those employees would have come under the Act. Respondent's employees are not to be excluded from such coverage merely because their employment to do the same work was under independent contracts. Kirschbaum Co. v. Walling, 316 U. S. 517, 524; WarrenBradshaw Co. v. Hall, 317 U. S. 88, 90.

The respondent was engaged almost exclusively in servicing customers for whom such services were necessary in their production of goods for interstate commerce. This took place in the midst of producing "the flow of goods in commerce" intended to be covered by the Act. Accordingly, the respondent cannot be classified as a "retail or service establishment" within the meaning of § 13 (a) (2), which contemplates an establishment serving ultimate consumers beyond the end of such "flow of goods in commerce." Roland Electrical Co. v. Walling, supra.

Throughout this case, the respondent has urged as a defense that, in good faith and from year to year, since before 1939, it has entered into and renewed written agreements with the labor union of which petitioner and those for whom this suit is brought were members. Some of these agreements, renewed since the Act became effective, applied to the periods here in question and required the respondent to pay overtime for work done in excess of 44 hours a week. This requirement was fully observed. The district court made a finding that the existence and observance of such agreements constituted no bar to the right of the employees to recover under § 16 (b) if the Fair Labor Standards Act applied to the case and required overtime pay for work done in excess of a lesser number dows for Safety, 74 Safety Engineering, Sept. 1937, pp. 13-14; 63 The Foundry, Aug. 1935, p. 89; Randall and Martin, Making Your Windows Deliver More Daylight, 22 Transactions of the Illuminating Engineering Society, March 1927, pp. 239–257.

of hours per week than were stipulated in the agreements. It was not necessary for the circuit court of appeals to consider the effect of this agreement because, in its view, the Act did not apply to the respondent's employees. However, under the view which we take, the respondent is entitled to a decision on this further defense. We agree with the district court that the agreements cannot supersede the Act and are not a bar to this action. Cf. Brooklyn Bank v. O'Neil, 324 U. S. 697, 707, et seq.

For these reasons, the judgment of the circuit court of appeals is reversed and this case is remanded to the district court for further proceedings in accordance with this opinion.

Reversed.

MR. JUSTICE JACKSON took no part in the consideration or decision of this case.

MABEE ET AL. v. WHITE PLAINS PUBLISHING CO.

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. No. 57. Argued December 5, 1945.-Decided February 11, 1946.

1. The publisher of a daily newspaper with a circulation ranging from 9,000 to 11,000 copies, of which about one-half of one per cent regularly goes out of the State, is engaged in the production of goods for interstate commerce within the meaning of the Fair Labor Standards Act of 1938. Pp. 180, 184.

(a) The maxim de minimis has no application here, because Congress made no distinction on the basis of volume of business, but, by § 15 (a) (1) of the Act, outlawed the shipment in interstate 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. P. 181.

(b) Though it be assumed 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 are to be included or excluded dependent on their size. P. 181.

178

Statement of the Case.

(c) These views are borne out by the legislative history of the Act, by the express exemption by § 13 (a) (8) of any employee of any weekly or semiweekly newspaper with a circulation of less than 3,000, the major part of which is within the county of publication, and by the lack of any exemption for daily newspapers or on the basis of volume of out-of-state circulation. P. 182.

2. The principles announced in Grosjean v. American Press Co., 297 U. S. 233, holding a state license tax on newspapers graduated in accordance with the volume of circulation unconstitutional, are not applicable here, notwithstanding the exemption of small weekly and semiweekly newspapers by § 13 (a) (8) of the Fair Labor Standards Act. P. 184.

(a) The Act does not lay a direct burden on the press in violation of the First Amendment, since the press has no special immunity from laws applicable to business in general. P. 184.

(b) The exemption of small weeklies and semiweeklies is not a "deliberate and calculated device" to penalize a certain group of newspapers but was inserted to put those papers more on a parity with other small town enterprises. P. 184.

(c) 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. P. 184.

3. The fact that the publisher of such a newspaper is engaged in the production of goods for interstate commerce does not necessarily mean that his employees are covered by the Fair Labor Standards Act of 1938, since that is dependent on the character of their work. Kirschbaum Co. v. Walling, 316 U. S. 517, 524; Walling v. Jacksonville Paper Co., 317 U. S. 564. P. 184.

4. No opinion is expressed on that phase of the case, since the state appellate courts did not pass on it. P. 185.

294 N. Y. 701, 60 N. E. 2d 848, reversed.

Petitioners sued in the New York courts for overtime compensation under § 16 (b) of the Fair Labor Standards Act. The trial court overruled a motion to dismiss the complaint, 179 Misc. 832, 38 N. Y. S. 2d 231, and gave judgment for petitioners. 180 Misc. 8, 41 N. Y. S. 2d 534. The appellate division reversed. 267 App. Div. 284, 45 N. Y. S. 2d 479. The court of appeals affirmed. 293 N. Y. 781, 58 N. E. 2d 520. It later amended the

Opinion of the Court.

327 U.S.

remittitur. 294 N. Y. 701, 60 N. E. 2d 848. This Court granted certiorari. 325 U. S. 845. Reversed, p. 185.

David H. Moses argued the cause for petitioners. With him on the brief was Morton Lexow.

Elisha Hanson argued the cause for respondent. With him on the brief was Letitia Armistead.

By special leave of Court, Jeter S. Ray argued the cause for the Administrator of the Wage and Hour Division, United States Department of Labor, as amicus curiae, urging reversal. With him on the brief were Solicitor General McGrath, William S. Tyson and Bessie Margolin.

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

1

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-ofstate. 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). 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

1 About 45 copies daily. There appears to have been an out-ofstate circulation of 43, 46, and 40 for the years ending March 31, 1939, 1940, and 1941 respectively.

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

3

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 Labor Board v. Fainblatt, 306 U. S. 601, 607, that the operation of the National Labor Relations Act (49 Stat. 449, 29 U. S. C. § 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, unlike the present one (Walling v. Jacksonville Paper Co., 317 U. S. 564, 570–571), regulates labor disputes "affecting" commerce. 49 Stat. 450, 29 U. S. C. § 152. We need not stop to consider what different scope, if any, the maxim de minimis might have in cases arising thereunder. Here Congress has made no distinction on the basis of volume of business. By § 15 (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

2 Cf. Davis v. Goodman Lumber Co., 133 F. 2d 52, 53; Sun Publishing Co. v. Walling, 140 F. 2d 445, 448; New Mexico Public Service Co. v. Engel, 145 F. 2d 636, 640.

3

Sec. 1 of that Act is a statement of the policy of Congress. It states that the denial by employers of the right of the employees to bargain collectively has the intent or effect of burdening or obstructing commerce by "materially affecting" the flow of goods from or into the channels of commerce or by "causing diminution of employment and wages in such volume as substantially to impair or disrupt" the market for such goods.

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