127 FRANKFURTER, J., concurring. Congressional grant-in-aid statute does not involve “jurisdiction" in the sense of a court's power but only the capacity of the State to be a litigant to invoke that power. In this litigation the Government did not challenge the standing of Oklahoma to question the constitutionality of the Act until the case came here. I think it is too late to raise that question at this stage. Assuming that it is here, it is my view that under the Hatch Act, in the legislative and judicial context in which it must be read, the State can question only the correctness of the procedure and the determination of the Civil Service Commission, not the validity of the Act. Section 12 (b), (c), 54 Stat. 767, amending 53 Stat. 1147, 18 U. S. C. § 611 (b) and (c). The Administrative Procedure Act does not apply to the present case. Act of June 11, 1946, 60 Stat. 237, § 12. That Act will, in due course, present problems for adjudication. We ought not to anticipate them when, being irrelevant, they are not before us. The Act ought not to be used even for illustrative purpose because illustrations depend on construction of the Act. Apart from the foregoing, I agree with MR. JUSTICE REED's opinion. Statement of the Case. 330 U.S. WALLING, WAGE AND HOUR ADMINISTRATOR, v. PORTLAND TERMINAL CO. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. No. 336. Argued January 17, 1947-Decided February 17, 1947. For many years a railroad has given to prospective yard brakemen a practical course of training lasting seven or eight days. Under the supervision of a yard crew, each trainee first learns routine activities by observation and is then gradually permitted to do actual work under close scrutiny. His activities do not displace any of the regular employees, who do most of the work themselves and must stand immediately by to supervise what the trainee does. The trainee's work does not expedite the railroad's business, but may, and sometimes does, actually impede and retard it. Trainees who complete the course satisfactorily and are certified as competent are listed as eligible for employment when needed. Prior to October 1, 1943, trainees received no pay or allowance of any kind; but, since that date, those who prove their competency and are listed as eligible for employment are given a retroactive allowance of $4 per day for their training period. Held: 1. Such a trainee is not an "employee" within the meaning of § 3 (e) of the Fair Labor Standards Act. Pp. 152-153. 2. Section 14, which authorizes the Wage and Hour Administrator to permit the employment of learners and apprentices at less than the minimum wage prescribed by the Act, is inapplicable to such trainees; since it relates only to learners who are in "employment" and carries no implication that all instructors must either get a permit or pay minimum wages to all learners. Pp. 151-152. 155 F.2d 215, affirmed. The Wage and Hour Administrator sued a railroad to enjoin alleged violations of §§ 15 (a) (2) and 15 (a) (5) of the Fair Labor Standards Act, 52 Stat. 1060. The District Court denied the injunction. 61 F. Supp. 345. The Circuit Court of Appeals affirmed. 155 F. 2d 215. This Court granted certiorari. 329 U. S. 696. Affirmed, p. 153. William S. Tyson argued the cause for petitioner. With him on the brief were Acting Solicitor General Washington, Stanley M. Silverberg and Morton Liftin. E. Spencer Miller argued the cause and filed a brief for respondent. MR. JUSTICE BLACK delivered the opinion of the Court. This is an action brought by petitioner against respondent in a Federal District Court to enjoin an alleged violation of $ 15 (a) (2) and 15 (a) (5) of the Fair Labor Standards Act, 52 Stat. 1060, 1068, 29 U. S. C. §§ 215 (a) (2), (5) which requires as to the employees covered by the Act the maintenance of records concerning their wages and the payment to them of minimum wages. The District Court denied the injunction on the ground that the particular persons involved were not employees, 61 F. Supp. 345, and the Circuit Court of Appeals affirmed on the same ground, one judge dissenting. 155 F.2d 215. See also Walling v. Jacksonville Terminal Co., 148 F. 2d 768. Certiorari was granted because of the importance of the questions involved to the administration of the Act. 329 U. S. 696. The findings of fact by the District Court, approved by the Circuit Court of Appeals, and not challenged here, show: For many years the respondent railroad has given a course of practical training to prospective yard brakemen. This training is a necessary requisite to entrusting them with the important work brakemen must do. An applicant for such jobs is never accepted until he has had this preliminary training, the average length of which is seven or eight days. If accepted for the training course, an applicant is turned over to a yard crew for instruction. Under this supervision, he first learns the routine activities by observation, and is then gradually permitted to do actual work under close scrutiny. His activities do Opinion of the Court. 330 U.S. not displace any of the regular employees, who do most of the work themselves and must stand immediately by to supervise whatever the trainees do. The applicant's work does not expedite the company business, but may, and sometimes does, actually impede and retard it. If these trainees complete their course of instruction satisfactorily and are certified as competent, their names are included in a list from which the company can draw when their services are needed. Unless they complete the training and are certified as competent, they are not placed on the list. Those who are certified and not immediately put to work constitute a pool of qualified workmen available to the railroad when needed. Trainees received no pay or allowance of any kind prior to October 1, 1943. At that time, however, the respondent and the collective bargaining agent, the Brotherhood of Railroad Trainmen, agreed that, for the war period, men who proved their competency and were thereafter listed as accepted and available for work as brakemen should be given a retroactive allowance of $4 per day for their training period. The findings do not indicate that the railroad ever undertook to pay, or the trainees ever expected to receive, any remuneration for the training period other than the contingent allowance. The Fair Labor Standards Act fixes the minimum wage that employers must pay all employees who work in activities covered by the Act. There is no question but that these. trainees do work in the kind of activities covered by the Act. Consequently, if they are employees within the Act's meaning, their employment is governed by the minimum wage provisions. But in determining who are "employees" under the Act, common law employee categories or employer-employee classifications under other statutes are not of controlling significance. See N. L. R. B. v. Hearst Publications, 322 U. S. 111, 128-129. This Act contains its own definitions, comprehensive enough to require its application to many persons and working rela tionships which, prior to this Act, were not deemed to fall within an employer-employee category. See United States v. Rosenwasser, 323 U. S. 360, 362–363. * Without doubt the Act covers trainees, beginners, apprentices, or learners if they are employed to work for an employer for compensation. This is shown by § 14 of the Act which empowers the Administrator to grant special certificates for the employment of learners, apprentices and handicapped persons at less than the general minimum wage.* The language of this section and its legislative history reveal its purpose. Many persons suffer from such physical handicaps, and many others have so little experience in particular vocations that they are unable to get and hold jobs at standard wages. Consequently, to impose a minimum wage as to them might deprive them of all opportunity to secure work, thereby defeating one of the Act's purposes, which was to increase opportunities for gainful employment. On the other hand, to have written a blanket exemption of all of them from the Act's provisions might have left open a way for wholesale evasions. Flexibility of wage rates for them was therefore provided under the safeguard of administrative permits. This section plainly means that employers who hire beginners, learners, or handicapped persons, "The Administrator, to the extent necessary in order to prevent curtailment of opportunities for employment, shall by regulations or by orders provide for (1) the employment of learners, of apprentices, and of messengers employed exclusively in delivering letters and messages, under special certificates issued pursuant to regulations of the Administrator, at such wages lower than the minimum wage applicable under section 6 and subject to such limitations as to time, number, proportion, and length of service as the Administrator shall prescribe, § 14 (1) Fair Labor Standards Act, 52 Stat. 1060, 1068, 29 U. S. C. § 214 (1). See also § 13 (a) (7). § 14 (2) provides that handicapped persons may be employed at less than minimum wages where the Administrator permits. 52 Stat. 1060, 1068, 29 U. S. C. § 214 (2). 741700 O-47-14 |