JACKSON, J., dissenting.

339 U.S.

choices, because our mandate is not to set aside findings of fact "unless clearly erroneous."

The judgment of the District Court is reversed except as to the National Association and Nelson; and as to them it is affirmed.

So ordered.

MR. JUSTICE FRANKFURTER and MR. JUSTICE CLARK took no part in the consideration or decision of this case.

MR. JUSTICE JACKSON, dissenting.

If real estate brokerage is to be distinguished from the professions or from other labor that is permitted to organize, the Court does not impart any standards for so doing.

It is certain that those rendering many kinds of service are allowed to combine and fix uniform rates of pay and conditions of service. This is true of all laborers, who may do so within or without unions and whose unions frequently do include owners of establishments that employ others, such as automobile sales agencies. See, for example, International Brotherhood of Teamsters, etc. v. Hanke, ante, p. 470. I suppose this immunity is not confined to those whose labor is manual, and is not lost because the labor performed is professional. The brokerage which is swept under the antitrust laws by this decision is perhaps a borderline activity. However, the broker furnishes no goods and performs only personal services. Capital assets play no greater part in his service than in that of the lawyer, doctor or office worker. Services of the real estate broker, if not strictly fiduciary, are at least those of a trusted agent and, oftentimes, advisory as to values and procedures. I am not persuaded that fixing uniform fees for the broker's labor is more offensive to the antitrust laws than fixing uniform fees for the labor of a lawyer, a doctor, a carpenter, or a plumber. I would affirm the decision of the court below.

NO. 96.

Syllabus.

POWELL ET AL. v. UNITED STATES

CARTRIDGE CO.

CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT."

*

Argued December 8-9, 1949.-Decided May 8, 1950.

The Fair Labor Standards Act applies to employees of a private contractor operating a Government-owned munitions plant under a cost-plus-a-fixed-fee contract with the Government. Pp. 498–522. 1. Such employees are not employees of the United States within the meaning of the Act. Pp. 504-508.

2. Such employees are engaged in the production of goods for commerce within the meaning of the Act. Pp. 509–515.

(a) The "transportation" of munitions of the United States to destinations outside of the state of their production is "commerce" within the meaning of the Act, even though the munitions were transported for use or consumption and not for sale or exchange. Pp. 511-512.

(b) The munitions produced were "goods" within the meaning of the Act, even though they were produced for delivery into the actual physical possession of the United States as their ultimate consumer. Pp. 512-515.

3. The Fair Labor Standards Act and the Walsh-Healey Act of June 30, 1936, 41 U. S. C. §§ 35 et seq., are not mutually exclusive, but are mutually supplementary. Pp. 515-520.

4. Neither the Act of July 2, 1940, 50 U. S. C. App. §§ 1171, 1172, nor the action of the Secretary of War taken pursuant thereto excludes the applicability of the Fair Labor Standards Act to such employees. Pp. 520-522.

174 F. 2d 718; 174 F. 2d 730; 171 F. 2d 964, reversed.

The facts and proceedings below are stated in the opinion at pp. 499-504. The judgments below are reversed and the causes remanded, p. 522.

*Together with No. 79, Aaron et al. v. Ford, Bacon & Davis, Inc., on certiorari to the United States Court of Appeals for the Eighth Circuit; and No. 58, Creel et al. v. Lone Star Defense Corp., on certiorari to the United States Court of Appeals for the Fifth Circuit.

Opinion of the Court.

339 U.S.

Thomas Bond argued the cause and filed a brief for petitioners in No. 96.

By special leave of Court, Bessie Margolin argued the cause for the United States, as amicus curiae, urging reversal. With her on the brief were Solicitor General Perlman, Robert L. Stern, William S. Tyson and E. Gerald Lamboley.

June P. Wooten argued the cause for petitioners in No. 79. With him on the brief were Charles H. Earl, Paul Talley, Wayne W. Owen, Cooper Jacoway and Gerland P. Patten.

Wayne Owen, C. M. Kennedy and Pat Coon submitted on brief for petitioners in No. 58.

William L. Marbury argued the cause for respondents. Robert H. McRoberts argued the cause for respondent in No. 96. Mr. Marbury was with him on the brief.

E. L. McHaney, Jr. argued the cause for respondent in No. 79. With him on the brief were Mr. Marbury, Otto Atchley and Mr. McRoberts.

Otto Atchley argued the cause for respondent in No. 58. Mr. Marbury was with him on the brief.

MR. JUSTICE BURTON delivered the opinion of the Court.

The question in each of these cases is whether the Fair Labor Standards Act of 1938, as amended,' applies to a person employed by a private contractor at a Governmentowned munitions plant operated by the contractor under a cost-plus-a-fixed-fee contract made with the United

152 Stat. 1060, et seq., 53 Stat. 1266, 54 Stat. 615-616, 55 Stat. 756, 61 Stat. 87, 63 Stat. 446, 910-920, 29 U. S. C. §§ 201-219, 29 U. S. C. (Supp. III) §§ 201-217.

497

Opinion of the Court.

States. We hold that the Act does apply but we do not reach the question of the validity of the individual claims based upon it.

This issue was argued here in Kennedy v. Silas Mason Co., 334 U. S. 249. We, however, remanded that case and withheld decision of the issue, awaiting a more solid basis of findings. Id. at p. 257. Each of the instant cases presents such a basis.

No. 96 (The Powell Case).

In December, 1940, the United States contracted with The United States Cartridge Company, respondent herein, as “an independent contractor and in no wise an agent of the Government" on a cost-plus-a-fixed-fee basis to operate the Government's St. Louis Ordnance Plant in Missouri. The contract stated that it was authorized by the Act of July 2, 1940.3 It provided that the respondent would operate the Government's plant for the manufacture of certain types and quantities of small arms ammunition, that the Government would reimburse the

2 Congress charged the War and Navy Departments with the operation of about 100 giant Government-owned munitions plants. Those Departments had the option of operating them themselves or through commercial contractors. So as to utilize fully the labor and management resources of the nation and to minimize encroachment upon its industrial structure, both Departments chose the latter course. As to the general war production policies, see Lichter v. United States, 334 U. S. 742, 767-768. Out of 143 billion dollars of contracts made by the War Department between 1941 and 1946, over 40 billions were cost-plus contracts. Out of 68 billion dollars of Navy contracts, 18 billions were cost-plus contracts. Hearings before Subcommittee of the Senate Committee on the Judiciary on S. No. 70, 80th Cong., 1st Sess. 422-423, 624–626 (1947). The quotation in the text is from the contract in this case, see p. 505, infra.

3 54 Stat. 712-714, 50 U. S. C. App. §§ 1171, 1172.

Opinion of the Court.

339 U.S.

respondent for its expenditures in such operation and, in addition, pay the respondent a fixed fee based upon the types and quantities of ammunition it supplied. The title to the site, plant, equipment and, in general, to the raw material, work in progress and finished munitions was to be in the Government. Most of the materials were to be supplied by the Government. The contract provided expressly for the reimbursement of the respondent's expenses for labor. The respondent, in turn, agreed to supply practically all services incident to the setting up of an efficient operating force and to the operation of the plant until the required ammunition had been produced. The respondent was made responsible for storing the materials, supplies and finished ammunition and for loading the ammunition on cars or other carriers in accordance with the Government's instructions. The ammunition generally was shipped by common carrier on Government bills of lading to military destinations outside of Missouri. The Government reserved large rights of supervision, auditing and inspection to be exercised through its "Contracting Officer." The employees, including the petitioners, were to be hired, assigned, directed, supervised, paid and discharged by the respondent.

4 Article III-F, 13 of the contract stated that:

"The title to all work under this contract, completed or in the course of construction or manufacture, and to all the Ammunition manufactured or in the process of being manufactured, shall be in the Government. Likewise, upon delivery at the site of the work, or at an approved storage site, title to all purchased materials, tools, machinery, equipment and supplies, for which the Contractor shall be entitled to be reimbursed under Title II hereof, shall vest in the Government. The Government shall bear all risk incident to such ownership. These provisions as to title being vested in the Government shall not operate however, to relieve the Contractor from any duties imposed upon it under the terms of this contract." (Emphasis supplied.)