*1 TERMINAL v. JACKSONVILLE WILLIAMS et al. CO.* Argued January 2, 1942. No. 112. 6, 1942. March Decided *Together with No. Term, 1940,Pickett, October General Chair Railway man Steamship Brotherhood & Clerks, etc., v. Union Co., certiorari, Terminal also on writ of 314 U. S. to the Circuit Circuit, argued January Court of Appeals Fifth 7, 1942. — *2 petitioners for No. 112. L’Engle F. Mr. Frank L. Stern argued Robert Court, Mr. leave By special Wage and Hour Administrator for the the cause curiae, Labor, amicus Department S. Division, TJ. and Messrs. Fahy General Rob- Solicitor in No. 112; Gardner, Irving Levy, W. J. Warner Stern, L. ert the brief for Administrator, on Skilling John E. curiae, 112 and 1023. in Nos. amicus Hartridge Mr. Julian Dickinson, with whom Mr. John in No. 112. brief, respondent onwas ' Mr. Charles Hay, M. with whom Messrs. S. D. Flana- gan and E. Franey D. were on the brief, petitioner in No. 1023.
Messrs. Payne Robert G. argued and John Dickinson the cause, Payne and Mr. brief, was on the for respond- ent No. 1023.
Mr. Justice Reed delivered opinion of the Court. question presented by both these cases is whether a railroad company operating subject a terminal to the Rail- way Labor Act and the Fair Labor Standards Act of 1938 required by those statutes, nego- absence of a *3 agreement tiated respecting wages, pay “redcaps” a fixed wage minimum hourly irrespective of the tips from passengers received the redcaps, or whether an account- ing guarantee plan which leaves all tips with the redcaps and assures them that each will receive at least the wage minimum is valid.
The Fair Labor Standards Act is not intended to do away with tipping. Nor it appear does Congress that general intended wage give minimum the tipping employments earnings-preference over the non-service The petitioners vocations. dispute do not the railroad’s that, during contention period, entire each redcap received earnings pay plus tips sum equal to —cash —a the required wage. minimum Nor is there in- denial of pay creased minimum redcaps on account of the wage guarantee challenged of the plan compared with the former tipping system. The guarantee also betters irregular mischief of income tips from and increases wage security. The desirability considering in setting a minimum wage, is, that whether tips from the viewpoint of social welfare part should be counted as legal j is not for decision.1 deal here udicial We wage, only petitioners’ with the assertion that Act minimum redcaps wage requires railroads earnings tips. to their from regard without background. have a common cases Prior Octo- 24, ber of the Fair effective date Labor Stand- in Act, redcaps ards at the terminals question per- formed familiar tasks without their reward other than of the passengers, and, although subject to con- supervision by siderable terminals,2 officially employees. considered September On In- 29, 1938, the terstate Commerce Commission, acting under i Railway Act, Labor 45 U. S. C. ruled that in redcaps 100,000 population over were employees within cities that Act. I. C. C. 410.
Subsequent to that ruling, parallel series of events in the culminating two controversies now us, before while differing in details, followed same general In pattern. nothing No. further occurred until the Fair Labor became Standards Act At effective. time, Jack- Terminal, sonville supposed compliance the Act, with began paying cash the amount which the statutory minimum exceeded each redcap’s re- This ceipts tips. system, some form, was used at the July 1,1940. terminal until
1 Tips Anderson, Legal See and Wages, Minimum XXXI American Legislation 11; Tips Review id. Gilson, Labor and Social Insurance, 67; Needleman, Tipping Wages, as a Factor in Monthly Labor Review, 1937, p. December example, 2 For terminals forbade the charges collection of for meeting redcap services, issued instructions for the of sick or disabled equipment
passengers, provided purpose, required and suitably dispersed uniformed and be about the terminal at places in such such hours as their services would be needed. 390
In the that the required belief Act of the mini payment mum without deduction of tips, by their redcaps, brought an action representative, Williams, against terminal in United States District Court for recovery of unpaid wages minimum between October 24,1938, and July 1,1940, and an equal liquidated additional amount as damages. Jurisdiction of the action was conferred § 24 of the (8) Code, Judicial 28 C. 41 U. S. (8), § ****8 (b) (b). § 16 F. L. S. C. A., 29 U. S. § terminal answered moved for summary judgment. Upon exhibits, consideration of the depositions, stipu judge granted lated trial facts the and the motion, Appeals Circuit affirmed. 118 F. Court 2d 324. Be importance question cause of the of the whether the tips could statutory be treated payment wage, petition redcaps’ representative certiorari was granted. U. S. 590. requires every employer
Section 6 of the Act engaged in employee each interstate commerce at 3 “(b) Any employer provisions who violates the of section 6 or employee employees section this shall be liable to or 7 of Act unpaid minimum wages, affected in of their their un the amount or may compensation, be, paid case and in an addi overtime liquidated damages. liability tional Action to recover such amount as jurisdiction competent by any may maintained in court of one be employees of himself for and in behalf or themselves and or more may similarly situated, employee employees or employees or such other agent representative maintain designate such action for and similarly situated. The court in such action in behalf of all plain any judgment plaintiff shall, awarded in addition defendant, attorney’s paid fee be tiffs, a reasonable allow (b), c. June Stat. and costs of action.” *5 require- of that Violation hour.4 per rates prescribed wages unpaid for the employer liable renders the ment by an action recoverable damages, liquidated Since agent designated representative.5 employees’ Williams was by stipulation admitted terminal litem, ad representative authorized redcaps’ engaged they and that employees, were its issue was whether the sole commerce, in interstate the Act had been made. 6 of required by § payment dis- favorably redcaps, to the most taken The evidence, 24, 1938, the effec- About following. October closes each of his who is Every employer pay to 4“(a) shall goods for commerce production in the engaged in commerce or following rates— at section, year during from the effective date of this “(1) the first hour, than 25 cents an not less years date, less during six from such than
“(2) the next hour, an cents upon expiration effect of one shall take
“(b) This section twenty days the date of enactment of this Act.” from hundred 676, 6, 1062, 29 52 Stat. U. S. C. 25, 1938, e. § June § trade, commerce, (b) ‘Commerce’ means in this Act . used . . “As among communication the several transmission, transportation, any place thereof. any outside State or from States any employed employer, includes individual ‘Employee’ “(e) cost, employee includes the reasonable ‘Wage’ paid to “(m) furnishing employer of such Administrator, determined facilities, board, lodg- lodging, if such board, or other with employee customarily employer to furnished such facilities are ing, or other 1060, 29 S. C. c. Stat. IJ. June employees.” § his 3, supra. note See *6 tive date Act, the terminal a written notice issued each redcap: Florida,
“Jacksonville, “Oct. 24th, “To Red Cap....................,
“Jacksonville Terminal Company: “In view of the requirements the of Fair Labor Stand- ards Act, effective October 24, 1938, and consideration your of engaging handling hereafter the baggage of hand and traveling effects passengers assisting of or otherwise them at or about stations it bewill nec- destinations, essary you report daily to the undersigned the by amounts received you as or remuneration for such services. hereby guarantees
“The carrier person to each continu- ing such service after October compensation together with including which, sums money of received provided, as above which will be less [sic] than the minimum provided law. by “You are subject to retain privileged to their being guarantee credited on all such such or remuneration by except received you portion such thereof may be undersigned required you by for taxes of char- upon imposed you acter law and collectible undersigned.
“All subject the matters above referred are right of the carrier to determine time from to time the identity persons to be permitted engage number to be work and hours devoted thereto, said to estab- regulations relating rules and manner, lish method place service, rendition of such and the accounting required. Terminal Company,
“Jacksonville “By L. Wilkes, J. Manager.”
“President-General Wooten, L. L. the General On November 3rd Chairman Railway Steamship Clerks, Brotherhood of designation of the Brotherhood redcaps’ received 4th bargaming representative. November he saw a their In the meantime terminal’s notice. he had copy on October 25th that view of the I. C. C. written Wilkes he covered decision considered collec agreement February 1, 1937, labor between tive and within the terminal, Brotherhood and union’s designation jurisdiction. After the Brotherhood, *7 continually invalidity existing the the protesting of ac ***6 guarantee counting system,* attempted negotiations and the terminal for a contract. redcap Eventually, with limited to of 16, 1939, a contract hours service and June signed. Meanwhile the working redcaps conditions was activities, their accustomed made the reports, continued the them accepted proffered the sums kept tips, first, receipts At no payments, the terminal. required Jacksonville; later, receipts at were were intro right expressly reserving redcaps’ duced the to sue’for addi July 1, 1940, under the Act.7 On tional amounts the inaugurated system charging passengers terminal a new of parcel for per redcap service, paying ten cents the red wage. agreement An hourly an with the caps Brother reducing arrangement writing ending hood this the accounting guarantee system signed controversial was August 9th. system redcaps The daily was so described because the made a ac worked,
counting of hours and the tips the number of amount of guaranteed collected, receipt and because the terminal the overall redcaps semi-monthly any wage by paying minimum shortage minimum,. tips and the between total receipt stated: The. signing my understanding receipt this “It is that I do not forfeit or right for such my may release to sue additional amount as due be (b) under of the Act.” Section against
No. 1023 proceeding brought is a similar by Pickett, agent forty- Union Terminal Company At redcaps working trial, five the Dallas terminal. the evidence, consisting agreed facts, statement of indi- some uncontradicted exhibits, testimony, and some cated, judge found, redcaps and the that were trial engaged the terminal and were interstate employees of He further found that to the Fair Labor prior commerce. of the redcaps paid by tips Standards Act the were Octo- public, that no other was made on or since contract wages was question ber and that ground public still an On the of the open one. judgment wages employer, gave were not he paid by Appeals redcaps. favor of Circuit Court F. was denied. 313 reversed, 2d and certiorari importance pre- U. of the issues S. Because granted. rehearing certiorari was sented, petition on 314 U. S. longer elements Pickett’s case are no
Since basic minimum again is whether the the crucial dispute, issue I. C. It after the C. paid. that, were was shown notified ruling employees, redcaps *8 that the Board terminal on October Dallas Railway of and Steam- Adjustment of the Brotherhood under the representative Clerks was their authorized ship as General Chairman Railway Act, Pickett, Labor negotiate in to asked for a conference order Board, the terminal delivered to October agreement. 22d, On the terminal’s signed by Buckner, letter, each a redcap in the same terms general manager, vice-president terminal. Jacksonville as the notice used at the the effective date of days 24th, October later, Two on and at on behalf of law, Pickett, proposal this a letter to protested Buckn request, their concluding: er,3 is notice the carrier, letter formal to made for
“This employee of each concerned protest behalf as a on proposed by method the carrier meet to against its is as The entire letter follows: copy your Company of a circular issued dated "I have at Texas, on and which was handed to each em- Dallas, October general e., redcaps, the tenor whom it was addressed: i. ployee to require employee report the individual to to the carrier which is to public from the amount that he receives and which infor- employ, compiling carrier intends its records to in- mation the complied of the Fair it has with Section 6 Labor Standards dicate that Act: contemplates crediting words, other carrier “In other employees persons
moneys its other than itself to relieve paid to following quoted obligations imposed section of itself of the law: “ ‘Fair Labor Standards Act:
“ Every employer pay employees shall 6-(a). to each of his ‘Section engaged production goods in commerce or in the for com- who following wages rates— at the merce year section, during the from the effective date of this
“‘(1) first hour/ 25 cents an less than quoted part pur- section of the law which is for the “The above clearly every engages notice, employer who sets forth pose of this during year each his the first after shall in commerce per the law 25 cents hour. the effective date entirety of the law in its does not authorize the examination “An discharge obligation respect with depend upon others carrier imposed thereby. payment of law, in carrier, made formal notice to the for and on behalf letter is “This against protest proposed the method employee concerned as a of each obligation it law, under the said and since meet its by the carrier to authority of premise in the has acted without appears carrier filing accordingly this Administrator, we are upon order of law or set herein.” protest, for the reasons forth notice *9 obligation under the it law, appears said and since that the carrier has acted the premise authority without of law or upon order of the are Administrator, accordingly we filing this notice for protest, the reasons set forth herein.”
No action taken was ever to recall or revoke the letter of protest redcaps and the individual never told the com- pany they its letter of accepted the terms of October 24th.
On December Pickett 26th, submitted to Buckner a proposed general agreement covering the hours service and working redcaps, conditions but not wages. their protracted After consideration the matter by both the terminal union, and the Buckner wrote Pickett De- on 6,1939, cember as follows: I you you told know,
“As this case to as whether or not the railroads will be allowed credit for tips received $2.40 up per the Court day, is and as soon as same glad negotiate is decided we will be agreement with Union, you which Clerks are the General Chairman Company.” for this January although
On 1,1940, dispute was not yet settled, working agreement of the limited type Pickett had proposed signed. was March On ac- counting guarantee system was abandoned by the for terminal, presumably the ten per parcel cents charge, and the following day this action was commenced. Throughout preceding period entire the redcaps had performed their usual had duties, filed slips showing the except hours worked for a brief and, period, tips re- ceived, kept tips, had accepted and had the money paid by guarantee. the terminal pursuant Never, the demand was however, additional abandoned, discharged and no refusing expressly consent to the terminal’s action.
397 companies The terminal Notice. Terminals’ Effect by the guarantee system accounting and the instituted the redcap as Act above, to each notice, quoted written parties that, here all accepted It is effective. became were subsequent notice, to and prior both 9 closely engaged a service “so railroads8 in interstate com transportation” to physical related of the Interstate Commerce (1) § 6 as to come under merce 246 Co., Union Terminal v. Cincinnati Stopher Act. they the notice employees, before such I. C. As 41, 45. C. upon to come the terminal agreement permitted companies’ to supervised service render property, this pay portion performing receive and customers transportation by retaining business all terminals’ the redcaps was at will employment This received. conclusions to subject employers’ to the desir In their businesses continuing employment. ability of customary, tips, is absence of an tipping where recipient. contrary, understanding, belong explicit Barlin, Zappas Ky. 376, 149 149 S. W. v. Polites v. 828; Manubens v. 935; 156 Iowa 137 N. W. Roumeliote, Leon, [1919] 1 K. B. 208. Where, however, arrange agrees turn employee which over ment is made in the absence of in employer, statutory perceived invalidity.10 is no reason terference, the facilities, supervises furnishes the work employer 9 Regulations Concerning of Employees In the Matter Class Included “Employee” Officials to be -within Term Subordinate Under (Sub.-No. Railway Act, parte 1), Labor Ex No. 72 229 I. C. C. Co., 410; cf. Cole v. Atlantic Coast Line R. 211 N. C. 191 S. E. Pennsylvania Co., R. Super. Booker 353; 82 Pa. v. validity general question On the a contract turn over City Ry. cases: Harrison following v. Kansas Terminal tips, see the 438; Gloyd Co., Hotel La Co., Salle Supp. 434, F. App. v. 221 Ill. Farb, Falkner, re 320; In Setree 104; 174 P. v. 178 Cal. Labor 22,547 (Ohio 60,779, App.). Labor Service P. H. ¶ Cases ¶ may compensation paid by take the travelers for the serv- ice, whether paid charge as a fixed A tip. tip as a a is redcap compensation for service. It customarily given always expected when such service is rendered.
With the effective date of the Act the employers became bound to minimum wage to their employees, redcaps. the latter Accordingly, were notified that *11 earnings future from be tips must accounted for and con sidered wages. Although continuously protesting the authority of the railroads to take over the tips, remained at subject work requirement. pro Such unavailing against tests were the employers. Although the new plan was not satisfactory to the redcaps, notice transferred railroads’ credit so much of the it By continuing affected. work, a new contract was created. This result follows because the employer, after notice, may keep earnings all arising from the business. Labatt, (2d & ed.) Master Servant, Vol. Re 2037; § statement, If Agency, § 388. the redcap did not accept offered, the terms he would be a volunteer and not an employee. As a volunteer he could probably keep his tips, but would not entitled be to a wage. contractual Restatement, gift Contracts, § No such of services to the terminals is here claimed.
Railway Labor Act. Petitioners that, assert whatever may authority be to issue orders accounting for the guarantee and plan, these railroads could not validly exercise the power because of the Railway Labor Act. 1185. The applicable Stat. provisions are quoted the note below.11 11 48 1187-88, Stat. duty carriers, “First. It shall be the of all § officers,
their agents, employees every and to exert reasonable effort agreements to make and concerning maintain pay, rules, rates of working conditions, disputes, and to settle arising all whether out of application agreements of such or otherwise, any in order to avoid interruption is to avoid object the Act com- of free promotion among association through merce settling disputes between purpose employees 2. To assure continued opera- the carriers. them in agreements the carriers reached changes by tions, pending bargaining, negotiations, are through collective individual contracts are Independent prohibited. 2,§ Act. It is to be noted that First to by the affected upon by petitioners, largely relied con- inclusive, Sixth, organization of freedom from employees, with cerned organization, such choice of interference carrier bargaining, and the manner for collective representatives operation any growing or to the carrier interruption to commerce dispute between the carrier and thereof. out of disputes or and its their between a carrier carriers All “Second. and, decided, considered, possible, if with all ex- be employees shall designated representatives between conference pedition, or carriers confer, respectively, the carrier toso authorized dispute.” interested in the employees thereof by the agents change carrier, officers shall the rates No “Seventh. *12 employees, working of its as class as em- rules, conditions or pay, of except prescribed agree- in such agreements in manner in bodied this Act.” 45 C. 152. 6 of U. S. or in section § ments Id., representatives employees Carriers and 1197. “Sec. change days’ notice intended thirty written of an give least at shall working affecting rules, conditions, pay, rates of or and agreements beginning repre- for the of conference between place the time and changes parties interested in such intended shall be of sentatives receipt notice, of said and upon days ten after the said agreed within thirty days provided every in the notice. In within the time shall be change given, intended been or conferences notice of has such case where thereto, reference of the Mediation being held with or services are requested by party, proffered either said Board has have been or Board working pay, rules, or conditions shall not be services, rates of controversy finally has been carrier until acted by the altered Board, required by Act, by of this the Mediation upon section 5 as elapsed days after termination conferences ten has period unless a request or services Board.” proffer of Mediation without U,. C. S. 45 § negotiations. on such Sec- entering carrying into and supra, changes of 11, tion note forbids 2, Seventh, as embodied working employees “as a class conditions supra. 11, note agreements” except provided 6,§ The to leave no doubt that phrased § crucial so as bargaining were only agreements reached after collective in the 1934 Seventh, appeared covered. Section first 2, like- Act, § and was Railway amendments to the Labor “in adding agreements” to that wise then amended of “an intended requirement former of notice section’s change working conditions.” affecting pay, rates of rules 48 Stat. 1197. These Compare 6, § Stat. with 582, limiting bargaining pro- point squarely additions action.12 Act to collective Railway visions of the Labor find such case, In petitioners No. the Jacksonville 1937, the agreement February 1, in the contract of Terminal Agreement “Revised Between the Jacksonville Employees Represented and Herein Named Company Clerks, Steamship and Railway the Brotherhood of Freight Employees.” and Station Handlers, Express the hours of agreement of that is limited to scope of em working groups conditions certain service and do redcaps appear.13 Wages in none of which ployees, the contract was negotiated, not covered. When are thought employees engaged of as were not Ry. Virginian Federation, 548-549; Co. v. Labor Cf. 300 U. S. Laughlin, 1, 44-45. & Board v. Jones 301 U. S. (2) (3) groups
13 The closest are described as follows: boys, (2) station “Group Other office and office —such baggage boys, announcers, gatemen, par- messengers, chore train engine telephone employees, callers, train crew switch- cel room operators, office, station warehouse operators, elevator board *13 janitors. and watchmen employed
“Group (3) stations, in and around Laborers store- house, warehouses.” and au Evidently redcaps only service.14 the
transportation contracting Brotherhood to them represent thorized the agreement to the took party the notice.15 Neither after regard redcaps agree under the any steps was disputed plan until after the instituted. ment the Brotherhood first claimed that Thereafter, when contract, 1937 Clerks’ covered redcaps were writing by repudiated was suggestion promptly authorization, after the company. Finally, terminal negotiations immediately begin did Brotherhood contract, a collective ultimately secured of service and work 1939, which covered hours June which embodied in the much was ing conditions wage agreement a Subsequently contract. Clerks’ working of this earlier part became August finding coverage no as to its appears While agreement. 1937 contract, we are clear from the record, in the parties arrange new application practical ultimately concluded, redcaps were not ments terms. within its to this is made approach particular problem
A different the Union Terminal case. The No. by petitioner (Sub.-No. 1), supra, v. Stopher Cincinnati parte 9; 14 Ex No. 72 n. Co., I. C. Terminal C. Union testified: Chairman of Brotherhood The General they ap- organization authority, or were have Does that “Q. redcaps em- redcaps, in this plaintiffs case, or the pointed negotiate Company, Terminal contracts ployed by the Jacksonville Company? Terminal wage agreements them with a Jacksonville “A. It was. At or about what time?
“Q. “A. About authorizations were 3rd, when the official November was over to me. turned year? What
“Q. “A. 1938.” *14 any col- argument upon not rest their do Dallas the that, contention is since Their agreement. lective representa- their then accredited Clerks, Brotherhood Act, Labor had Railway of the the purposes tive for for conference on October the terminal asked conditions and agreement working negotiate for to of the terminal subsequent act subjects, the other related accounting guarantee plan vio- establishing in the Act was therefore ineffective Railway lated the Labor which the red- arrangements by existing change to This, urged, their own. it is caps retained of the minimum recovery in a without would result Petitioner upon the carrier for the relies tips. credit to Railway Act, §of Labor paragraphs the first six First, 11, supra, § note particularly 2, 48 Stat. agree- duty on the carrier “make . . placing . any interruption in order to avoid ... ments ... carrier.” operation the terminal negotiate The Brotherhood and did first concluded, January effective their col- finally agreement covering the working redcaps. lective Be- placed was, by Act, duty cause the carrier under it every effort make collective agreements, to exert does that, where pending negotiations, not follow those no in bargaining agreements are have been effect, collective arrange authority the carrier cannot exercise its in the business relations with its manner shown discussing record. As we have Jack- this stated case, sonville Act dealt with Railway Labor collective bargaining only, agreements employ- and not with pertinent ment of individuals. This conclusion is con- sidering request effect Dallas collective bargaining. negotiations institution of bargaining
The collective authority change prohibi- does not carrier. change against pending tions of 6 or conditions Seventh, bargaining 2,§ and those of are aimed at pre- fixed venting changes previously conditions collec- agreements. Arrangements made after bargaining tive *15 higher entitled to a bargaining obviously collective are than, made continuity and those degree permanency of purpose. the carrier for its own convenience by the in the discussion of Minimum We stated Wages. that given employees the terminals to their notice by the notice to effect was to transfer the covered in this terminal credit credit of the terminals. But the in both the redcaps, petitioners cases, hands of assert employee by utilized cash to the paid cannot be worked the terminals have urged It is that employer.16 of pay- relieve themselves largely a scheme to out which let “amounts pay and to travelers ments to itself,” paid by employer should be requires the law accounting plan only difficulties make the and that contrary but to the of the statute as policy undesirable in order reports tips by redcaps false of likely to foster any the terminals from the minimum and to reach save guarantee payments. prescribed “Every employer that shall
Section wages following . . rates. of his . at each only by defined the direction to include Wages .” are . . dealing only say: here with Fair petitioners 16 In No. “We are ruling any of Act, statute or Act and not other Labor Standards mandatory requirement of ‘that is the the act It commission. word, phrases words, pay.’ act contains no employer shall any guarantee payment.” suggesting say: to be “We, course, do not want 1023, petitioners In No. pur- in will not contending cents received that 25 understood as say wages, that Con- in but we do cents received much as 25 chase as employed carry be say means should right what gress had the very Congress said, has that purposes act, out the accomplished be act can best reasons, purposes of the
good employee.” to the employer wage payment from the a direct employer “reasonable cost ... in word the lodging, or other board, employee with furnishing such “wages” connotes word What facilities. . . .” deduce from other items we must specified, addition legislative purpose. of its light of the act provisions employer for the wages” ordinarily means Obviously, “pay at money orders convertible into money or to hand over statutory from the “tip” the word The absence of face. it meaning quite makes ordinary extension em- every gratuity given a worker clear that not his Congress If part wages. is a customer his ployer’s in wages in mind to include all the words tips, had had it expressing thought. Such readily available does not foreclose a decision that conclusion, however, tips may the so-called be specific situations certain compensation services, for his reality employee’s *16 wages. therefore employers employees of have
The interests diverse legislators include, exclude, to or variously influenced in wage in specification of items enactments ignore tips For wage important. example, base was where the Compensation Longshoremen’s Harbor Workers’ in the District of employment Act,17 applies which also of tips computation includes Columbia,18 specifically usually are compensation Workmen’s acts compensation. in or with including wages remuneration, tips construed as wages turn tips to make the inclusion of tendency parties, express implied, upon contemplation gen- wage minimum acts are wage in contracts.19 State 17 509, (13), 1425; 33 C. 902 4, 1927, March 2 44 Stat. U. S. c. § (13). 18 May 612,45 17, 1928, Act c. Stat. 600. 19 Comm’n, Compare App. 41 Cal. v. Industrial Accident Co. Hartford Gladys Case, 59, 55; Powers’s 234; 132 Me. 166 A. 543, P. Gross’ 183 Co., 621; Case, 515, v. Rochester Taxicab 275 Mass. 176 N. E. Sloat
405 erally tips.20 silent as to Under the N. R. A. the inclusion tips plan on. a similar the accounting App. 57, 163 904, 491, 116 177 Div. N. Y. S. aff’d mem. 221 N. Y. N. E. Bryant Co., 1076; App. Pullman Div. 311, 488, v. 188 177 Y.N. S. 579, 127 909; Gottlieb, mem. 228 Y. E. App. aff’d N. N. Kadison v. 226 Lloyds Casualty Meredith, 700, 233 485; N. Y. S. Co. 63 Div. v. S. W. (Tex. Exchange App.); Husted, 2d 1051 Federal Underwriters Civ. v. 94 S. W. 1 K. B. 766 2d 540 (C. A.); Great Western (Tex. Civ. App.); Penn v. Ry. Co. v. Spiers Helps, & Pond, Ltd., [1918] A. [1908] C. 141 (H. Begendorf Co., App. 404, 183 L.) v. & 193 Div. N. with Y. S. Swift Horling, 826, 917; App. 214 Div. 211 N. Y. S. Anderson v. 487. But Lindvay, 495; 531, 94 31 P. 2d Industrial Comm’n v. Colo. Makris cf. 857; Inc., 26, Restaurant, N. Misc. A. Top Hat J. Coates v. v. gratuities Hotel, Misc. 13 A. 2d where N. J. Warren Unemployment compensation apparently fol excluded statute. Compare Feinberg, App. Matter Div. lowing the same trend. Corp. v. Alexander Hamilton Hotel Board 834, 15 Y. with N. S. 2d 766 Wage Review, 184, 21 and Hour Manual A. 2d 739. See N. J. L. (1941 ed.) 191. (3d ed.), Serv., 2A 2 P. H. Labor 20 See C. H. Labor Law C. Serv. passim. is due fact that most states -statute Probably this minimum, merely but some board official not fix authorizes does occupation. by orders, occupation by orders relate to do so Such considera tipping is common seem to-take into in which trades quite naturally, trade, setting wage tion in minimum against therefore, apt expressly crediting are forbid minimum. Standards, Dept, Labor, Wage Minimum
g.,E. New York State Industry, Directory effective June Order No. Restaurant Employees minimum Rate. The basic provides: “Service Basic City rate employees New shall be at the of 20 York for service Employees Basic per . . Non-Service Rate. cents hour.. . CSty non-service New York wage for basic minimum *17 3, 1940 per hour . . . from June of 29 cents shall be at the rate In through 30 thereafter. 2, March 1941 and cents ... Gratuities. part from counted gratuities patrons others be event shall no Employee. employee’ means wage. ‘Service minimum Service patrons solely serving food to to the employee duties relate whose thereto, incidental performance of duties at tables seated also, gratuities patrons.” See from such customarily receive and who 406 In the ap was
guarantee plan involved, proposed.21 here proved not credited toward codes, tips expressly were for cus lower mínimums those wages, relatively but given tomarily receiving may indicate that weight federal although mentioned.22 The expressly not security age social laws old benefits23 and define for employ security social “all remuneration taxes24 as including paid ment, the cash value of all remuneration regulations of any medium other than cash.” The Security following Social Board “The are excluded state, from computation of‘wages’: Tips gratuities . . . paid directly employer, of an employee by customer any way employee accounted for 26 (h) employer.”25 Act, Railroad 1§ Retirement Dept, New York Labor, Wage Standards, Directory State Minimum Order 6, 25,1940; Hampshire Hotel Industry, No. effective Nov. New Labor, Wage Mandatory Division, Order Bureau Minimum 1938; No. 3, Occupation, 1, Restaurant District effective Nov. Wage Housekeeping Board, 4, Minimum Public Columbia Order No. Occupation, 8,1938, reprinted Report in the Annual May effective 1939, pp. ff. Board 27
21 Proposed Competition Industry, Code of Fair for the Hotel sub (C) 1933, Association, Sept. 6, mitted the American Hotel Ill Art. Trade, (e); Proposed Competition Shop Code of for the Barber Fair 8,1934, public hearing revised for on Jan. submitted the Barbers’ Industry Recovery Association, (1); Art. Restaurant Industrial IV 1933, by Competition, Sept. 12, Code of Fair submitted the National Association, IV, Restaurant Art. § 22 Needleman, Wages, 1, Tipping supra, See as a Factor in note at 23 (a). Aug. 1373; 409 10,1939, c.666, (a), 209 53 Stat. 42 U. S. C. § § 1383, 1392; (a), (b), 53 S. C. Stat. 26 U. 24 I.R. C. §§ (b). (a), §§ 25Reg. Security 1280; F. R. Board, Art. 2 F. R. 20 C. Social 301,1938-1 also Bull. 455. 402.14. S. S. T. Cum. See § 309; C. (h), 50 Stat. 45 ü. S. 26 Act of June c. § (h). 228a
407 Act, § 1 Unemployment (i)27 Insurance the Railroad and within the meaning “compensation” from tips exclude The Retirement Board has Railroad provisions. their accounted for earnings redcaps, that all determined “money are question, here plan under the carriers “compensation” under the therefore and remuneration” ex “tips.”28 We can therefore not forbidden acts the safe assump Act with Labor Standards Fair amine meaning no fixed either “wages” has word tion excluding gratuities. including or money passing wages” interpret “pay as limited to
To would let construction redcap the terminal to the from technicality. important turn on a narrow statute make whether course, practical can no difference It, then receive their first turn their up received with the charged minimum or are wage per minimum hour.29 (i), 1095; 45 Act of June e. 52 Stat. U. S. C. 1§ (i). by 28 Opinion 11, approved tbe Board I. No. R. R. U. September 18, 1941, 41-397, B. 3 Railroad Retirement Law on O. —. Bulletin tag system into effect plan substantially put The former following caps carrier agreement of and the at Jacksonville the red guarantee accounting system. im the termination .of portant provisions are: hourly wage Caps paid Red will “1. be established Administrator, Wage Law, and the or orders of at Hours minimum set such orders or law. Daily Cap’s tags sold, money hours,
“3. records of each Red re-remitted, kept Company; will be the end of each at day period period, money pay checks, roll all received from sale of Caps wages etc., by totaled, paid Caps, deducted, Red bewill to Red (1) per parcel tag Company after one cent has been aside for set remaining expenses, (9) nine cents used of Red *19 labor improving of Congress problem approached wage of a minimum conditions the establishment in these in certain It that workers required industries. as that great dustries at least as compensation receive a the em Except requirement, fixed for that by the Act. concerned, free, was so far as Act was ployer left way. work own compensation problem to out the his Other our Harrison courts are in accord with view. v. Co., Ry. 434; Terminal 36 F. Harrison Kansas-City Supp. Louis, 4 C. H. v. Terminal Railroad St. C. Labor Assn. of Co., id., 60,346; Ryan Denver Union Terminal Cases v. ¶ 60,61 ¶ 8 . con- arguments been petitioner
The other have only require find that mention. sidered, but we two if It the carriers take credit for the First. is said be in redcap for it would compensation service, charge transportation a the terminals for effect have filed no service, therefore, since the terminals Interstate covering (7) a violation of of the tariff, § .30 Fur- (7) § Commerce 34 Stat. 49 U. S. C. 6 587, Act, the same thermore, petitioners act, prohibit- assert regu- ing special because the carrier’s rates, is violated indigent redcap lations the service without receive true, peti- if would avail charge. contention, Neither tioners. Sections 9 and 10 of Interstate Commerce (10) per ten hour Captains, than the cents for Caps, and other Captains in Item covered (9) parcel tags per
“If total nine handled and or the sum cents wages Caps greater paid period, Eed sold is than for among Eed remaining Caps divided all on the basis of funds will be Caps during pay period, so that all Eed will hours worked roll (9) service, hours from this fund. If the nine share alike for each wages pay is sufficient outlined in per parcel cents handled agreement, (1) agrees Terminal Co. item this outlined in item 1.” Stopher Co., v. Cincinnati Terminal I. C. Cf. C. Union Act provide damages to persons injured by unlawful punishment acts and of the carrier agents. or its There nothing is in the sections to indicate that petitioners right would have a of action.31 It urged
Second. in the Dallas case that the terminal from March 1, to October 1939, voluntarily accounting guarantee abandoned the system in favor system old non-accountability tips. We find nothing accounting modified practice during that period to support such a conclusion. Rather the termi- only nal seems simplified have its bookkeeping and partially relieved redcaps clerical duties. Prior to March and after 15th, October 1,1939, had *20 to daily make a report of both hours worked and tips re- regardless ceived of on amount, a printed time fur- slip by nished the terminal for the purpose. Between March 15th, 1st and October the time slips furnished the company provision contained no for reporting but tips, only reporting for hours.32 But the redcaps were instructed v. Southern Ry. Brownlee Co., I. C. C. The Com stated: “It is mission well settled is that a carrier entitled to com pensation any transportation rendered, service and that where a authority has rendered service been for which tariff no exists beneficiary the of paid such service has the sum claimed the empowered carrier, we order the payment reparation are to only paid shipper in the event the sum unjust amounted to an exaction for the unreasonable service received.” See also Twin v. Corp. Co., Coach Erie R. 393, 395; 203 I. C. C. Cities Service Oil Co. v. Erie R. Co., 237 I. C. C. Flanagan:
32Mr. “We next offer in ‘C’, evidence Plaintii’f’s which is also Exhibit slip a time but a from just read, different the one little and it reads: “ Company. ‘The Terminal Union Date................Hours duty to......M., showing on from......M. four of those lines.’ says:
“And then ‘Total hours .........., worked’ and then a signed by right blank line to be Cap Red under words, it the Cap.’ ‘Red
“I slip call attention to provision the fact that on this there is no reporting tips.” receive during
that work them, any period, should minimum hour, statutory in tips per less than 25 cents it and the report he should to terminal hourly wage, the tips terminal would the difference between re- pay only wage. minimum Thus the effect ceived and the reporting change superfluous to eliminate was step the minimum exceeding tips equalling or —a elimination, administration, efficient toward more system. accounting guarantee
Affirmed. part took no the consideration Roberts Mr. Justice or decision of this case. with whom Mr. dissenting,
Mr. Justice Justice Black, Douglas Murphy concur. and Mr. Justice It appears judgments
I think should be reversed. is: whom question Upon that the these cases does me a minimum paying wage, impose duty the statute ambiguity There no employer someone else? “Every employer shall congressional mandate . . his . . . . not less to each of agree than I am unable hour.” 30 cents “wages” paid travellers are given redcaps by by the railroad. *21 charged fee openly here could have a employers The It by redcaps. they performed appears the services It system. a is there adopted now such said have system a under which no difference between practical charge on the impose public a openly railroads from travellers redcaps accept one so- under which a part redcaps' the railroad as tips, called treated who a wages. pays traveller railroad Generally, it to who he is the railroad. One charge paying knows necessarily know that he is tip a a does not gives redcap discharge statutory helping duty railroad its thereby tip- employees. paying a minimum it the red- tips, know whom is entitled to paying public before which A like that cap plan us, railroad. giver for whom from covertly diverts giver did not them to for whom employers intended tip kind of doubtless would them and to whom intend me voluntarily to contain given, have been seems not interpretation And think an deception. element of I to benefit from employers which permits the F. L. S. A. meaning of the with the plan accord such does Congress. language used FLORIDA.
HYSLER v. Argued March December No. 1941. Decided