compared with 1,306 the previous year. Of the 1,233 civil actions filed, 1,189 were commenced under sections 16(c) or 17 of the Fair Labor Standards Act or section 2 of the Public Contracts Act, and 44 represented other civil actions. Criminal actions were instituted in 132 cases.

Proceedings under these acts were completed in 1,261 cases during the fiscal year, an increase of 65 over the fiscal year 1959. A total of 1,120 injunctions were obtained, 969 by contest and 151 by consent; and 21 other civil actions were closed. Criminal proceedings under the Fair Labor Standards Act were completed in 120 cases. Convictions were obtained in 112 instances; there were 3 acquittals, and 5 cases were either dismissed or nolle prossed. In addition, Walsh-Healey administrative proceedings were instituted in 52 cases, and 50 cases were completed during the year.

Fines totaling $150,119.82 were imposed by the courts in criminal cases; $6,525 were assessed in contempt proceedings, of which $4,420 represented fines of a compensatory nature.

Restitution of back wages was also obtained as follows: Criminal cases, $230,723.56; civil cases, $1,095,375.96; contempt, $29,117.90, for a total of $1,355,217.42. In addition, $83,665.42 was recovered as liquidated damages in WalshHealey administrative or court proceedings during fiscal year 1960 for a grand total of $1,438,882.84.

The Branch of Administrative Legal Services provides legal assistance in departmental administrative matters, actions, and proceedings, including the preparation of rules and regulations under the various statutes administered by the Department. The Branch is responsible for the conduct of proceedings and hearings relating to minimum wage orders for Puerto Rico, the Virgin Islands, and American Samoa under the Fair Labor Standards Act and for the determination of industry prevailing minimum wages under the Walsh-Healey Public Contracts Act. It participates in any actions for judicial review of these orders or determinations.

In fiscal year 1960, at the request of the various bureaus and offices of the Department, the Branch prepared and published 137 documents in the Federal Register, including 42 amendments to the Code of Federal Regulations. Among these documents were wage orders under the Fair Labor Standards Act for 8 industries, 22 wage classifications in Puerto Rico, and wage classifications in all industries in the Virgin Islands and American Samoa.

The Branch provided legal services during fiscal year 1960 leading to the issuance of prevailing minimum wage determinations under the Walsh-Healey Public Contracts Act for the evaporated milk industry and the tire and related products industry, and represented the Department in minimum wage hearings under that statute for eight other industries covering the manufacture of metal business furniture and storage equipment, industrial and refined basic chemicals, fabricated structural steel, paper and pulp, electronic component parts, office computing and accounting machines, paper and paperboard containers, and photographic and blueprinting equipment and supplies.

Supreme Court and Appellate Litigation

This Division is responsible for the conduct of the appellate litigation of the Department in actions under the Fair Labor Standards Act and the WalshHealey Public Contracts Act, and in other cases as required. Its functions include the preparation of briefs and the presentation of oral argument in the appellate

courts.

During the fiscal year, 31 briefs were filed, 8 in the U.S. Supreme Court and 23 in the Federal courts of appeals. Twenty-seven were filed in cases instituted by or against the Secretary, and the remaining four on behalf of the Secretary as amicus curiae in suits brought by employees. Seventeen decisions were rendered, including three by the Supreme Court. The Department's position was upheld in 14 of the 17, including 2 of the 3 Supreme Court decisions.

In a case of major importance to the enforcement of the Fair Labor Standards. Act, Mitchell v. Robert DeMario Jewelry Co., 361 U.S. 288, the Supreme Court held that an employer who discharges an employee for filing a complaint with the Wage-Hour Division can be ordered by the district court to reimburse the discharged employee for pay losses resulting from the discriminatory discharge. The Supreme Court, overruling the Court of Appeals for the Fifth Circuit, agreed with the Department's contention that, although the statute does not expressly grant authority for such reimbursement orders, authority is implicit in the general grant of jurisdiction in section 17 to restrain violations of the act. The Court said that the statutory prohibition against discrimination was designed to make employees feel "free to approach officials with their grievances," and that this purpose can hardly be achieved if an employee may make "the attempt to secure his just deserts under the Act *** only at the cost of irremediable entire loss of pay for an unpredictable period."

Following the DeMario decision, the Eighth Circuit in Mitchell v. Goodyear Tire & Rubber Co., 278 F. 2d 562, held that even where there was a valid ground for discharge, if the immediate motivation was the employee's filing of a complaint with the Wage-Hour Division, the discharge was a violation of the act for which the employee should be reimbursed.

In another case, Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, the Supreme Court held that an employee of a retail interior decorating and custom furniture business was covered by the Fair Labor Standards Act, and did not come within the scope of the retail or service establishment exemption, where the employer also manufactured and sold parts to be incorporated in aircraft assemblies produced for interstate shipment. These sales, which totaled over 25 percent of the employer's annual sales, were held to be "for resale" rather than retail. The Court reaffirmed that the 1949 revision of the act did not represent a general broadening of the retail exemption and that the exemption is to be "narrowly construed." On the authority of this decision, the Court of Appeals for the First Circuit held in Sucrs. de A. Mayol & Co. v. Mitchell, 280 F. 2d 477, that sales of materials to building contractors (where not used for residential or farm construction) were not retail, but "for resale."

In Mitchell v. H. B. Zachry Co., 362 U.S. 310, a majority of the Supreme Court held, with four Justices dissenting, that a construction company's employees engaged in constructing a new dam, to replace and greatly expand the water supply for a municipal water system, were not covered by the act, notwithstanding that over 40 percent of the system's water was furnished to industrial users, most of whom were engaged in producing goods for interstate commerce. The Court expressly rejected the reasoning of the court below (5th Cir.), which held the act inapplicable because the project was "new" construction, thus sustaining the Department's position that construction work is not excluded from the act merely because it is "new." However, the particular project involved in this case was held not covered on the ground that construction of the dam was a separate undertaking too remote from the operation of any production facilities producing goods for commerce.

Several decisions of the Courts of Appeals sustained the Department's position on other Fair Labor Standards Act coverage questions. In Mitchell v. Emala & Associates, Inc., 274 F. 2d 781 (4th Cir.), the act was held to apply to employees engaged in hauling and leveling fill dirt for the construction of sections of interstate highways. A similar holding was made in Mitchell v. Hooper Equipment Co., 279 F. 2d 893 (5th Cir.), with respect to employees engaged in mining rock used in materials sold to contractors for construction of interstate commerce facilities. In Caserta v. Home Lines Agency, Inc., 265 F. 2d 281 (2d Cir.), a shipping clerk in the local office of a ticket agency for foreign steamship lines was held to be covered. And in Sucrs. de A. Mayol & Co. v. Mitchell, supra, warehouse employees who received, checked, and stored incoming goods were held to be covered, even though they did not assist in unloading.

In an adverse decision by a divided court, the First Circuit held, in Mitchell v. Whitaker House Cooperative, Inc., 275 F. 2d 362, that an enterprise organized as a homeworkers' cooperative to deal in hand-knitted and crocheted articles was not the employer of the homeworker-members, who under the circumstances of the case were self-employed and therefore not subject to the act. The Supreme Court has agreed to review this decision.

The Division during fiscal 1960 continued successfully its efforts to stem the tendency of some of the district courts to deny injunctive relief even though finding violations. In Mitchell v. Southwest Engineering Co., Inc., 271 F. 2d 427, and Mitchell v. Blanchard, 272 F. 2d 574, the Courts of Appeals for the Eighth and Fifth Circuits, respectively, reversed judgments of lower courts which had refused to enjoin employers from violating the act on the ground that the infractions had been committed in "good faith." Another decision, Wright v. Carrigg, 275 F. 2d 448 (4th Cir.), sustained the Department's position that the court has no discretion to deny, and must grant, reasonable attorney's fees to the employee's attorney in a successful employee action for recovery of unpaid

wages.

A highly important question under the Walsh-Healey Public Contracts Act was decided by the Court of Appeals for the District of Columbia in George, d.b.a Capitol Coal Sales v. Mitchell, 282 F. 2d 486. The court upheld the deter

mination of the Wage-Hour Administrator that several separate bids, submitted by the contractor in response to a single invitation, constitute a single contract in the total aggregate amount for the purpose of determining whether the $10,000 jurisdictional amount prescribed in the Public Contracts Act is met, ruling that a dealer who is in fact a contracting principal "should not be permitted to evade the restrictions and covenants of the Walsh-Healey Act merely because of the number of sheets of paper on which he elects to submit his bids."

General Interpretative Services

The Branch of Wage-Hour Interpretations of this Division furnishes advice and assistance in the interpretation of several of the statutes administered by the Department, particularly the Fair Labor Standards Act, the Walsh-Healey Public Contracts Act, and the Eight-Hour Laws. This function is carried out by rendering either written or oral opinions, upon request, to the public, other Government agencies, and bureaus and regional offices within the Department. These opinions express the position of the Department and are used as a basis for enforcement activities.

During the 1960 fiscal year, the Branch rendered approximately 6,200 oral and written opinions. It also reviewed an average of 100 opinions a month which were prepared elsewhere, particularly in regional offices, and took appropriate action to assure that they correctly reflected the official position of the Depart

ment.

The Branch of Veterans' Reemployment Rights Interpretations of the Division prepared 136 original opinions, reviewed 206 opinions rendered by regional attorneys, and analyzed and transmitted 177 cases to the Department of Justice for litigation. Thirteen trial briefs and documents were prepared for use in litigation. Approximately 600 notes on decisions were written in connection with the preparation of the "Legal Guide and Case Digest," a replacement and modernization of the former "Interpretative Bulletin and Legal Guide of 1948" and the "Case Digest Supplement." Other activities included almost 500 conferences with veterans, employers, union representatives, other agencies, and employees of the Bureau of Veterans' Reemployment Rights. Also, the Branch studied, reviewed, and made recommendations respecting proposed legislation in the veterans' reemployment rights field.

The Branch of Safety Standards and Benefit Plan Reports Interpretations renders interpretative legal advice and assistance in connection with the 1958 safety amendments to the Longshoremen's and Harbor Workers' Compensation Act, the Welfare and Pension Plans Disclosure Act, and the regulations promulgated under these acts. During fiscal 1960, the Branch prepared 356 interpretative letters and legal memoranda and rendered approximately 2,981 oral interpretations on legal questions and problems in connection with these statutes.

The Branch also assisted in the drafting of safety and health codes for the longshore and ship repair industries pursuant to the maritime safety amendments, as well as procedures for the application and granting of variations from safety and health regulations.

In connection with matters arising under section 5 of the Walsh-Healey Public Contracts Act, the Branch rendered legal assistance during the year to the Wage and Hour and Public Contracts Administrator in the preparation of seven decisions in cases which were appealed to him from decisions of hearing examiners. The Branch also rendered legal assistance to the Secretary in 42 cases in connection with the Secretary's function of determining whether action should be taken to relieve parties found to have violated the Walsh-Healey Act from the ineligible list provisions of the law.

Employees' Compensation

This Division is composed of two branches, the Branch of Appeals and Review and the Subrogation Branch. The Branch of Appeals and Review renders legal services to the Bureau of Employees' Compensation in the administration of the workmen's compensation program under the Federal Employees' Compensation Act and the Longshoremen's Act and extensions thereof; these acts cover civil officers and employees of the United States and the District of Columbia and private employees within the regulatory jurisdiction of the Federal Government. The Subrogation Branch directs the program for recovery from third parties of damages in cases of injury and death of civil employees injured while in the performance of duty and protected by the Federal Employees' Compensation Act, where such injury or death resulted from the negligence of a third party.

Through the Branch of Appeals and Review, the Solicitor's Office represents the Director of the Bureau when compensation awards are appealed to the Department of Labor's Employees' Compensation Appeals Board, a quasijudicial body whose decisions are final and not subject to further review. In addition to legal advice furnished to the Bureau in the fiscal year through conferences and opinions, the Branch represented the Director in approximately 385 appealed cases in which the latter's decisions were reviewed by the Appeals Board. Hearings were held in 160 of these cases, with representation by this Branch and oral argument.

Workmen's compensation provisions applicable to private employment, with respect to which the Branch provides legal services to the Bureau, are contained in the Longshoremen's and Harbor Workers' Compensation Act, the Defense Base Act, section 4(c) of the Outer Continental Shelf Lands Act, and the District of Columbia Workmen's Compensation Act. Legal services are also provided in connection with the administration of the War Risk Hazards Compensation Act.

In addition, since 1959 three new groups of employees were brought within the coverage of the Longshoremen's Act or its extensions. Public Law 85-538 provided coverage for employees of post exchanges and other similar nonappropriated fund activities of the armed services, Public Law 85-477 provided coverage for persons employed under Mutual Security Act contracts, and Public Law 85-608 provided coverage for Red Cross workers and others similarly employed in