hours between 40 and 60 at least they would get overtime payment. Senator PEPPER. The Secretary was going to express some views on that, I believe.

Secretary SCHWELLENBACH. He has expressed what I was going to end up with.

Senator PEPPER. In other words, if we did that we would have a uniform jurisdiction over these employees with respect to both wages and hours?

Mr. WALLING. Yes.

Senator PEPPER. And yet the safety requirements would still be vested in the Interstate Commerce Commission?

Mr. WALLING. Yes.

Senator PEPPER. If they decided that employees shouldn't work over 40 hours, and therefore couldn't work any overtime, they would still have the power to do that?

Mr. WALLING. That is correct.

Senator PEPPER. Mr. Murphy, I suppose you are noting these legal points so that if the committee wishes, you can incorporate them into the proper legal form?

Mr. MURPHY. Yes, sir.

Senator ELLENDER. Wouldn't you have difficulty with some of the employees who make long trips? Could you, under the law as it now exists, make it so that they couldn't perform more than so many hours per month?

Mr. WALLING. We couldn't. The Interstate Commerce Commission can. That is the basis of their jurisdiction.

Senator ELLENDER. I can see complications that may arise there the same as you would have with seamen.

Mr. WALLING. Yes.

Senator ELLENDER. A lot of these truck lines have a couple of men who might travel over twelve or fifteen hundred miles, and to make the round trip it might take over 40 hours.

Mr. WALLING. The Wage and Hour Division has no authority to limit hours beyond 40.

Senator ELLENDER. It strikes me that something ought to be done to remedy a situation like that and make it permissive.

Mr. TYSON. May I make one statement?

Senator ELLENDER. Yes.

Mr. TYSON. So far as Puerto Rico is concerned this exemption doesn't apply now because the Motor Carrier Act doesn't include Puerto Rico. Their drivers and people of that kind have never been exempt, they have always been under the act.

Senator ELLENDER. Nobody has mentioned Puerto Rico.

Mr. TYSON. I meant we have always had jurisdiction with respect to the drivers down there.

Mr. WALLING. Of course they don't have the long hauls of several days to the extent that we do on the Continent.

Senator ELLENDER. That is right, and it strikes me that you ought to be given permission to take into consideration those situations and make exemptions when necessary.

Mr. WALLING. Well, under the proposal which the Secretary and I have made, there would be no limitation whatsoever on the hours they could work beyond 40.

Senator ELLENDER. But they would still be subject to the overtime provisions?

Mr. WALLING. Yes.

Senator ELLENDER. And they would be given the opportunity of maybe making it up in another week? In other words the point is if they work this week say 40 hours, and maybe the next week 60 hours, and the next week they might work 20 hours, so as to even up 40 hours per week. You have no authority under the bill as drafted to make such an adjustment. Don't you think it would be advisable to make that permissive for the Administrator to remedy a situation of that nature if it should present itself?

Senator SMITH. That applies also to the seamen's problem. Has the seamen's question come up? I was sorry to be late getting here. Senator PEPPER. We have already had that question up, Senator. Senator SMITH. I am sorry.

Mr. WALLING. May I make this suggestion as to the distinction in the two situations? There isn't really a problem of safety in the seamen's situation because those men are not so constantly applied to their jobs that the fatigue factor sets in, that they ought to be limited with an over-all ceiling on hours, as is the case with the truck driver, for instance, whose endurance is limited and whose hand at the wheel is important. You just cannot expect a man to drive more than a certain number of hours a day with safety to other people on the road. Therefore, you have certain automatic and natural limitations on his hours which are going to apply regardless of any overtime system, and for that reason I think that the situation is quite different from that of the seamen.

Senator ELLENDER. But the law makes it 40 hours, and the Interstate Commerce Commission says 60, is that right?

Mr. WALLING. Yes, on those over whom it has asserted jurisdiction, on the ground that 60 hours is the longest stretch during a week which a man ought to be permitted to drive; otherwise, he is a hazard on the road. That is the theory of the Interstate Commerce Commission rule of 60 hours.

Senator ELLENDER. Granting that, it strikes me that a driver may have to work 60 hours to perform a mission, that is, to go from one point to another

Mr. WALLING (interposing). Over a period of perhaps 5 or 6 days. Senator ELLENDER (continuing). It strikes me that if the next week, let us say, he works but 20 hours, that you as Administrator ought to be in a position where you wouldn't require the employer to pay overtime for the 60 hours the employee worked in the first week, because of necessity; and so long as he works, let us say 160 hours per month, he would be within the purview of the act, even though he should work 55 hours 1 week and then catch it up on some other trip.

Mr. WALLING. Well, if any such provision were made, may I respectfully suggest that the committee make pretty definite the framework within which you expect us to operate, and not leave it to our discretion, because I can see all kinds of practical problems which are going to arise, and I think that is the kind of judgment which the Congress ought to make as to what averaging, if any, can be done. That ought not to be left up to the Administrator without any specific directions in the bill.

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Senator ELLENDER. You would have no objection to such a provision if it could be worked out, would you?

Mr. WALLING. I don't think so. I frankly hadn't thought about it before. It wasn't under contemplation. But I would like at least to say right now that we would like some very specific directions from you as to what you intend us to do, and not leave it completely to our discretion, because we would like to avoid a repetition of the "area of production" problem if we can.

Senator BALL. Are you suggesting that subsection (b) of section 13 be eliminated entirely?

Mr. WALLING. No; just (b) (1) because (b) (2) applies to the railroad employees. In your bill you have modified (b) (1).

Senator PEPPER. Yes; we have modified it with respect to the motor-carrier employees.

Mr. WALLING. Yes; and (b) (2) employees are railroad employees. Senator PEPPER. What change has been made with respect to the railroad employees?

Mr. WALLING. None at all.

Senator ELLENDER. We had several witnesses for the grain elevators out West wherein the minimum wage fixed is not at all in the picture, but as some of them pointed out, somebody has to be on hand to receive the grain for a period of hours that may be beyond the 40 hours per week, and they are complaining that since they are paying the minimum wage that they should not be affected by this overtime. Have you anything to say on that?

Mr. WALLING. Well, the proposal which the bill has for letting them have up to 14 weeks' exemption, with some freedom from the overtime restrictions, but limiting them to at least 56 hours a week and 12 hours a day before they have to pay overtime, would care for the major part of their problem.

Senator ELLENDER. But why wouldn't it be feasible to let them continue running their business as they are now with the condition that for the hours worked they will get at least the minimum fixed in the bill. A lot of these employees simply have to be on hand and they don't do much work, it is just the idea of being there in case the farmer should come in with a truck of wheat?

Mr. WALLING. But still their time isn't their own; they are at work even though they are not physically doing anything. They are not free to go to a ball game, for instance.

Senator ELLENDER. I understand that, but we ought to be practical about this in a situation of this kind, in administering the act. It strikes me that where they receive-and I think the record will so show-more than the minimum wage provided in the bill, yet you require that they be paid overtime in case they have to be on hand to receive maybe one truckload of wheat in a whole day and it is necessary for them to be there for that, but you still want to force the operator to pay overtime. Something might be worked out there.

Mr. WALLING. Well, I think that the bulk of the grain which comes in and which requires the long hours of employment, and an addition, temporarily, to the crew, pretty much would come within the 14week period, so that for the balance of the year the grain elevator in a very small community, for instance, where it is a small elevator, would operate with a restricted force, that is, with less people than it would have during the other period, and if it is necessary to have

50 or 70 hours of employment at that elevator, I should think that the workweek could be divided up between two people during the nonpeak periods.

Senator ELLENDER. As I understand it that suggestion was made but was found not to be practicable. Senator Ball might be able to say something on that.

Senator SMITH. I recall the testimony on that. The gentleman who represented those grain elevators took the position that in many cases there was only one man employed on a year-round basis

Mr. WALLING (interposing). But of course it wouldn't cost the company any more to have two men working 30 hours a week each at straight-time pay, than it would to let one man work for 60 hours at straight time. The economics of the situation are no different; it is just a question of whether you are paying out the total wage to one man, or dividing it between two.

Senator ELLENDER. The difficulty is to get the two men to do that work.

Senator SMITH. And you break the customary set-up by changing the rules.

Senator ELLENDER. Just judging from their testimony I am sure it would do a lot of harm to them. Yet they are complying with the minimum-wage provisions in every respect, and everybody seems to be satisfied, even the workers, as to the manner and method by which it is being handled. Why we should interfere with that now is just beyond me. I would like to see them permitted to work according to the method or custom of the past without any interference so long, of course, as I said, that employees are being paid the minimum wage specified in the bill.

Senator SMITH. It seems to me that that would be just and would save your Department a lot of headaches, particularly where it is a recognized custom of the business. Those warehouses, they said, had to be opened at night sometimes; that if a farmer brought his stuff in, had no place to store it, he might knock on the door even at night and there had to be a sort of continuous performance in the operation of the elevator, and that that had been their practice.

Mr. WALLING. Of course many factories, prior to the time of the enactment of this law, had a practice of working 48 hours' straight time, and the idea was that we were going to try to spread that and encourage employment of a second shift.

Senator ELLENDER. You can't do that with the farmers.

Senator PEPPER. This morning there was a representative of, I believe, the Wholesalers and Retailers Union, who was raising the question, which I think was suggested yesterday, as to whether the jurisdiction and coverage of the bill should be extended to affect employees of what we call the national chain stores, for example. The suggestion was made that the language of applicability should be changed from "engaged in interstate commerce or in the production of goods for interstate commerce" to "affecting interstate commerce or in the production of goods for interstate commerce."

Senator ELLENDER. Such an amendment would put millions more workers under the bill; wouldn't it?

Senator PEPPER. First I wanted to ask any of you gentlemen who want to express yourselves, what you think would be the legal effect of such an amendment to use the words "affecting interstate com

merce," which I understand is the language employed in the National Labor Relations Act, which is supposed to have a larger coverage and a wider reach than the Fair Labor Standards Act of 1938, which doesn't contain that language, "affecting interstate commerce." Mr. Secretary, would you care to comment on that?

Secretary SCHWELLENBACH. I think the legal effect would be to put this act in the same position as the National Labor Relations Act. I think there is a little disagreement between Mr. Walling and myself. I understand he wants the words "substantially affecting interstate commerce" in there. I would object to the use of the word "substantially" because we have a series of court decisions upon the meaning of the words "affecting interstate commerce," and it seems to me that it would be undesirable to inject a new element into it.

It is true that it would put a large number of people under the act that are not no v under it. I think it should be included.

Senator ELLENDER. Mr. Secretary, what additional coverage would it mean; what industries or businesses would be additionally covered if that wording were changed as you propose?

Secretary SCHWELLENBACH. Well, these national chain stores for example.

Senator ELLENDER. How about a chain store that is located exclusively within a State, that is, is owned and controlled by a corporation that is located within a State-would such corporations be covered?

Secretary SCHWELLENBACH. The distinction would be as to the way in which they got their goods into the State. If the corporation shipped the goods into the State itself, or they were shipped directly to the corporation from outside of the State, then the amendment would cover them. It seems to me that the old stock-pile rule would apply.

Senator ELLENDER. Isn't that true of any store, that most of its goods are shipped in from out of the State? Couldn't you go a step further and say it would cover every store in the State where that store obtains its merchandise from outside of the State? Wouldn't it cover them?

Secretary SCHWELLENBACH. It is very doubtful if a store that is operating through a wholesale distributor, that is where the goods are brought in

Senator ELLENDER (interposing). What about the wholesale distributor?

it?

Secretary SCHWELLENBACH. It would certainly cover him.

Senator BALL. It would cover all large department stores, wouldn't

Mr. TYSON. There is an exemption for retail establishments, which wouldn't be affected. In other words, they might be covered but they would still be exempt.

Mr. WALLING. As a matter of fact, under the proposal which you referred to, a good many of the establishments which the union was hoping to cover, that is the retail outlets of the chain stores, would be exempt. I don't think they would accomplish, through that method, their purpose, because of the specific exemption in the statute of retail establishments, and we now have jurisdiction over a good many of the wholesale establishments.

Senator PEPPER. Mr. Walling, and Mr. Secretary, you know in the Southeastern Underwriters case in the Supreme Court it was held