there have been assertions before this committee that in some way the pro posed curtailment will facilitate the "spread work” and “economic betterment” ideas underlying the proposed amendments. Such a conclusion is unfounded Indeed, this curtailment more likely would lead to uneconomic disruptions of the industry. Under the operation of the present exemptions, all canners have an exemp tion available of 28 weeks to meet their individual seasonal canning dervands. The individual canner is left to select on the basis of local growing conditions when to take the exemption. Such individual flexibility is essential because of the great variations both as to the length of the harvest season and the num ber of items canned. The harvest season varies, for different products and areas, from a month to three months. Moreover, the typical canner strives to process at least two different crops. Many can more. It is, therefore, not at all unusual that the total seasonal canning operations of a particular canner will extend over many months. He must, consequently, use the exemption when the harvest glut comes for each product and then work the necesasry hours at different times during the whole canning season. This flexibility is permitted under the present exemp tions. At the same time, no canner receives any competitive advantage, because all are limited by the same maximum of 28 weeks. The proposal that section 7 (c) be eliminated and section 7 (d) (3) b broadened in some unstated manner would wholly destroy this uniformity The Administrator would under this suggestion be able to fix, without any review of any kind, different overtime exemptions, for the same or differen crop for different States, regions, and areas. Since the canned food price is fixed by national competition, such untrammeled discretion would set up new differentials having wholly unforeseen results. Even the best conceived differential, imposed by external Government regulation rather than supply and demand, inevitably leads to economic competitive inequalities, and consequently disruptions not found under the present overtime provisions are inevitable. These differentials would be magnified by any substantial increase in the minimum wage. At the proposed rate of 75 cents an hours, the total overtime and minimum payment would be $1.07 an hour. This is a substantial difference which would be necessarily reflected in increased prices in direct proportion te the different overtime limitations which might be fixed under the new proposal. The canning industry, due to inherent uncertainities of weather and related factors, is one of sporadic profits with a majority of organizations financially small in comparison to other industries. The magnified differentials could wel serve to cripple or even wipe out an important portion of the industry in a bad year. The original reasons for requiring these overtime provisions still exist, as indicated by Mr. Walling. This fact is further emphasized by the action of the Secretary of Labor in exempting the canning industry from the overtime requirements of Executive Order 9240 requiring the payment of double time for work on the seventh day of each workweek. This was granted for canned fruits and vegetables on August 25, 1943, and for west coast canned fish on June 7, 1943. There is not any question of “spreading work" or "broadening" the minimum wage coverage in the canning industry. In a seasonal rush, it is to the canner's and farmer's advantage to use all available labor. Long hours at those times result only from the fact that there is essential work for the available labor. An overtime penalty will not change this fact. The same basic considerations discussed for fruits and vegetables apply to canned fish. The criteria which impelled the origian agricultural exemption apply today with force to support the fishery exemption. Uncontrollable seasonal peaks at the time of fish runs when fish are caught, the undoubted need for flexible opportunity to prevent spoilage by immediate canning, and the economic desirability of uniform treatment of fish canners to prevent uneconomic disruptions make highly important retention of section 13 (a) (5) in its present form. The association strongly supports a uniform period within which employees may sue an employer for unpaid overtime. Under the present act, the limitation period is left to be fixed by State law. These State periods range from 6 months to 6 years or more. The resulting uncertainty is emphasized by the retroactive effect of charged interpretations made either by the Administrator or court decision. The basic unfairness of a retroactive ruling is, of course, plain. As a practical matter, most industries, including the canning industry, live under the act as interpreted by the Administrator rather than taking each questionable point to court. But these interpretations can be and have been reversed by both the Administrator and the courts. Any change necessarily has retroactive effect because it is an interpretation of the law in force at all times since 1938. The reasons for the changes are immaterial in an employee action. Thus, an employer who has been in good faith abiding by the current interpretations can, without any fault on his part, find himself suddenly faced with liabiilty for unpaid overtime plus the penalty of an extra amount equal to the unpaid overtime. This heavy burden is, of course, greatly aggravated when long limitation periods permit piling up liabilities for as long as 6 or more years. Such a liability could bankrupt an industry. Certainly it is an uncalled-for risk. One year is ample time for an employee to ascertain his rights and bring an action. And it is a period which would prevent an undue accumulation of employer liabilities. Certainly employers as well as employees are entitled to some measure of stability. To meet these difficulties (which have been detailed in hearings during this Congress on H. R. 2788 before a subcommittee of the House Judiciary Committee), it is recommended that the uniform limitation period be 1 year, rather than the proposed 5 years. In addition, to prevent any charge of unconstitutionality, it is recommended that all pending employee claims not barred under applicable State limitation statutes must be filed in court within 6 months after enactment of the amendment. Thus the suggested amendment would not have any retroactive effect to cut off claims which already may have accrued. Respectfully submitted. NATIONAL CANNERS ASSOCIATION. EXHIBIT 26 IN RE S. 1349, SEVENTY-NINTH CONGRESS, FIRST SESSION To the Senate of the United States and its Committees and Subcommittees on Education and Labor considering S. 1349, Seventy-ninth Congress, first session. The petition of J. Dewey Singleton, in his capacity of vice president of and acting for the Louisiana Syrup Association, respectfully represents that: 1. The Louisiana Syrup Association is a nontrading or nonprofit corporation organized under the laws of Louisiana, domiciled in the city of Lafayette, La. Its members are persons actually engaged in the production of sugarcane and persons actually engaged in the processing or manufacturing of sugarcane into sirup. 2. The membership of the association comprises and represents a great majority of the entire production of pure cane table or country sirup in Louisiana. 3. By resolution of the board of directors of the association petitioner, J. Dewey Singleton, in his capacity of vice president of and on behalf of the association, was authorized and directed to and does hereby file this petition protesting against the adoption and enactment of the proposed Senate bill 1349 insofar as pure cane sirup is concerned for the reasons hereinafter stated. 4. Sirup manufacturers are already forced to compete with a subsidized industry and cannot stand additional burdens, for the following reasons: (a) Cane sirup is not governed by the Sugar Act When the so-called Sugar Act was adopted it was decided that cane sirup should be exempted from its provisions and consequently not entitled to the benefits accorded to sugar. Under the terms of the act and regulations, farmers growing and selling cane for processing into sugar receive benefit and incentive payments from the Government; but no such payments are paid by the Government to farmers growing and selling cane for processing into sirup. In order to compete with raw-sugar factories the sirup mills must match these payments. For example, the benefit and incentive payments disbursed by the Government to growers of cane processed into sugar is $2.82 per ton; and consequently, the sirup mills must pay to growers of cane processed into sirup the same amount paid by sugar factories, plus $2.82. In other words, sugarcane grown for sugar is subsidized but sugarcane grown for sirup is not. (b) The proposed legislation, as customarily applied to cane sirup, would increase existing wages 90 percent The sirup industry under the ruling of the Administrator and in fact is of a seasonal nature. The season extends over a period of about 60 days, and, of course, the mills must run 24 hours per day. The custom is to work two 12-hour shifts, 7 days per week, or 84 hours per week. Under the present wage-and-hour law and regulations, as applied to cane sirup, the flat rate of pay is 40 cents per hour with no provision for overtime. The present average weekly pay is therefore $33.60. The proposed amendment, as applied to cane sirup, would fir the rate of pay at 65 cents per hour for the first 56 hours and 971⁄2 cents per hour for the next 28 hours of the sirup mill employee's workweek. The average weekly pay under the proposed amendment would therefore be $63.70. In other words, the new legislation would increase the average weekly pay of a sirup mill employee from $33.60 to $63.70, or 90 percent. (c) The result would be an unbalanced economy Suppose it be argued that during the war sirup manufacturers received a good price and that they will probably receive a good price for their product during the coming season; what is nevertheless the result? During the war their employees received, and they now receive an average weekly wage of $33.60. The war is over. Now one of three things must of neces sity happen: The price will remain exactly and permanently stationary. The price will come down. The first proposition may be eliminated as an economic impossibility as markets, left alone, must and do fluctuate. The second proposition is possibly a consummation devoutly to be wished. Unfortunately, however, it does not seem to be in the cards, unless there is some fancy pump-priming or subsidizing somewhere down the line. Now if Congress can devise a scheme to bring about high prices to meet the proposed higher wages, but without inflation, no industry could seriously complain. But the proposed amendment does not contemplate any such program. The sirup industry, of course, is not advocating the appropriation of money or the creation of a subsidy in order to meet the proposed increase in wages, but it brings out the point in order to demonstrate that the proposed legislation is only a half measure. On the one hand, it would almost double the wages of the employee, but on the other hand it offers no assurance to the employer that he will be able to meet the pay roll. If the market is left to the law of supply and demand, unshackled but unaided, one is forced to the conclusion that war prices will not hold. Soonor or later and probably sooner the price of sirup will drop. In the face of this proposition. however, the new legislation for the future would guarantee to the employee almost double the amount he received during the war and the high-price period. 5. The proposed amendment to the wage-and-hour law, as applied to the sirup industry, would discriminate against the vast majority of workers similarly situated for the following reasons: (a) The sirup industry is incidental to farming It is a fact that practically every sirup mill operator in Louisiana owns a farm and grows sugarcane. It is also true that such sirup mill owners grind sugarcane produced on their own farms. Numerous mills, of course, also grind outside cane, along with their own. It is believed, however, that the bulk of the table or country sirup produced in Louisiana is made from cane produced on the farms of the sirup-mill operators. In other words, the very general run of things is that sirup production is incidental to farm operations. (b) Sirup-mill labor is farm labor In connection with sugar production in Louisiana most raw-sugar factories are built around and are operated on plantations growing sugarcane as their primary crop. There are in Louisiana, however, only about 64 raw-sugar factories. In the southern portion of the so-called Louisiana sugar section, possibly onehalf of a farmer's land is devoted to sugarcane production, and the other half to the production of other crops. In the northern portion of the sugar section of the State, possibly one-third of the average farmer's land is devoted to the production of sugarcane and the balance to the production of other crops. In other words, the average farmer does not by any means produce only sugarcane. He produces cotton, sweetpotatoes, Irish potatoes, cabbage, corn, snap beans, peppers, and other crops, depending upon his locality and the available market for his produce. We frequently find, in the sugar section, and especially in the northern portion thereof, farmers not growing any sugarcane, but devoting their entire land to other crops. Louisiana is an agricultural State and the sirup mills are located in the rural sections thereof. The fact is that the sirup mill labor is drawn from the farms around the mill. In the case of your petitioner, J. Dewey Singleton, for instance, every employee in his sirup mill, except the engineer, is or has been a farmer. It is believed that 90 percent of the workers used in the sirup mills throughout Louisiana are farmers drawn from the surrounding vicinity. (c) Only about 1 out of 15 farmers in the vicinity of a sirup mill is lucky enough to get a job in the mill As above pointed out, the sirup mills in Louisiana are located in the rural sections of the State. The rural sirup mill is surrounded by very numerous small farmers, growing varied crops. During grinding some of the farmers are engaged in planting and harvesting their own cane, others in harvesting corn, cotton, hay, harvesting, grading, packing and shipping sweepotatoes, and still others in making general repairs about the farm, etc. Besides, there is not enough work in the sirup mill to employ all the farmers even if they were not otherwise engaged. The result is that only approximately 1 out of 15 farmers around a sirup mill gets a job in the mill during grinding. (d) The proposed amendment would allow to farmers working in sirup mills an average of 76 cents per hour as compared to an average of 30 cents per hour earned by farmers engaged in general sugarcane farming operations Under the regulations of the Department of Agriculture, field labor is not entitled to an increased or graduated rate of pay for overtime work. The flat rates per hour for the various classes of sugarcane field workers established by the Department of Agriculture are as follows: Farm labor cutting cane.... Farm labor loading cane.. Other cane harvesting operations__ Farm cultivation labor other than tractor drivers and teamsters_ Cents 312% 383 262% 252 32% It is seen that the average rate of pay per hour for sugar-farming operations as set by the Department of Agriculture is approximately 30 cents. In order to fix and establish the general rates of pay the Department of Agriculture must find and did find that the foregoing rates are "fair and equitable." Now, as previously indicated, the proposed amendment, as applied to cane sirup, would fix the rate of pay at 65 cents per hour for the first 56 hours and 971⁄2 cents per hour for the next 28 hours of the sirup-mill employee's workweek. The average is thus 76 cents per hour. The small percentage of favored employees, while receiving more than double the wages earned by the others, would also be favored with a more attractive type of labor. It is certainly more agreeable to work in a sirup mill, under a roof and rather pleasant surroundings, than to work in the fields in inclement and sometimes freezing weather. Wherefore, petitioner, J. Dewey Singleton, in his capacity as vice president of and acting for the Louisiana Syrup Association, respectfully prays that the proposed amendment to the wage-and-hour law, as applied to pure cane sirup, as set forth in Senate bill 1349, be rejected and that the present provisions of the act and the regulations thereunder be retained. And he prays for general and equitable relief. THE LOUISIANA SYRUP ASSOCIATION, STATE OF LOUISIANA, Parish of St. Martin, 88: J. Dewey Singleton, being duly sworn, according to law, deposes and says: That in his capacity of vice president of and acting for and on behalf of the Louisiana Syrup Association, he is petitioner in the above and foregoing petition; that he has read the same and that all the facts therein contained are, in his opinion and to the best of his knowledge and belief, true and correct. J. DEWEY SINGLETON. Sworn to and subscribed before me this 16th day of October 1945. E. E. WILLIS, Notary Public. EXHIBIT 27 STATEMENT OF DR. WILLIAM M. LEISERSON I have been a vice president and member of the board of the Consumers League of Ohio for 15 years. The National League is filing a statement in general support of bill S. 1349 and H. R. 3914, but I have been asked to testify particularly on a question raised before this committee by an officer of the Western Union Telegraph Co. with respect to messengers employed by the company. I happens that in 1938 I was the hearing officer appointed by the first Administrator of the Fair Labor Standards Act to conduct a public hearing and make findings and recommendations with respect to a request submitted to the Admin. istrator for permission to employ messengers at wage rates less than the min)mum wages specified in the act. In the course of my duties as hearing officer I became familiar with the messenger problem under the act, and I should like to address myself specifically to that problem. The present law provides that the Administrator is authorized to permit the employment of "messengers employed exclusively in delivering letters and mes sages" at such wages lower than the general minimum as he might prescribe. The representative of the Western Union Co. proposed to the committee that this provision be amended "to the effect that the increase in the minimum wage now under consideration shall not apply to messengers under 18 years of age employed principally in the pick-up and delivery of telegrams and letters." You will note that the word "principally" is substituted for the word "exclusively," and that the increase in the minimum wage proposed by S. 1349 and H. R. 3914 is not to apply to the messengers. When the original Fair Labor Standards Act went into effect in 1938 the company argued that it could not afford to pay the minimum rate of 25 cents an hour as required at that time. The Administrator held, however, that he was not authorized to exempt the company from this provision of the act, and since that time it has been paying the wages specified by the act. Nevertheless, the company has not been losing money and its predictions of financial losses have not materialized. On the contrary, the company has done pretty well financially. But aside from financial considerations there is the more important question of treating all employers alike who are engaged in the messenger business. So far as messenger service is concerned, the Western Union has competitors who are required to pay the minimum rates provided by the present Fair Labor Standards Act and who will be required to grant any increases that may be authorized by Congress if it adopts the proposed bill. At the hearing in 1938 two companies, Service Messenger Co., Inc., of New York, and Advertising Distributors of America, who compete with Western Union in the business of messenger service, requested that they be heard in opposition to the telegraph's petition for exemption. They appeared and presented evidence showing that the telegraph companies were using their mes sengers with lower rates of pay to compete unfairly with other business concerns engaged in messenger service. Because of the lower wages the telegraph companies were paying their messengers, they were able to underbid and take away business from these competing companies. Briefs filed by Advertising Distributors of America and by the Trade Association of Advertising Distributors stated that "approximately 2,000 companies are engaged in distributing advertising circulars and samples and employ approximately 85,000 employees, and that the telegraph companies insofar as they distribute circulars and samples compete directly with these companies." The Administrator in refusing to exempt the telegraph companies from the wage provisions of the act observed that Congress may well have been aware of facts of this character, and the authority to exempt messengers may have been deliberately limited to those "exclusively" engaged in delivering letters and messages for this reason. If section 14 of the act, which authorizes exemp tions under certain circumstances, had used the word "principally" instead of "exclusively," it would have permitted this unfair competition, and apparently Congress wanted to provide equal protection of the law to all competitors. 1 Opinion and Decision of the Administrator, January 14, 1939, in the Matter of Applications of Western Union Telegraph Company rat |