Stanley Forman Reed

“ Obviously 'pay-wages' ordinarily means for the employer to hand over money or orders convertible into money at face. The absence of the word 'tip' from the statutory extension of the ordinary meaning of wages makes it quite clear that not every gratuity given a worker by his employer's customer is a part of his wages. If Congress had had it in mind to include in wages all tips, the words were readily available for expressing the thought. ”

“ The guarantee also betters the mischief of irregular income from tips and increases wage security. The desirability of considering tips in setting a minimum wage, that is whether tips from the viewpoint of social welfare should be counted as part of that legal wage, is not for judicial decision. [1] We deal here only with the petitioners' assertion that the wages Act requires railroads to pay the red caps the minimum wage without regard to their earnings from tips. ”

“ It is urged that the terminals have worked out a scheme to largely relieve themselves of wage payments to red caps and to let travelers pay 'amounts which the law requires should be paid by the employer itself' and that the accounting difficulties make the plan not only undesirable but contrary to the policy of the statute as likely to foster false reports of tips by red caps in order to reach the minimum and save the terminals from any guarantee payments. ”

“ There is no ambiguity in the congressional mandate that 'Every employer shall pay to each of his employees * * * wages * * * not less than 30 cents an hour.' I am unable to agree that tips given to red caps by travellers are 'wages' paid to the red caps by the railroad. ”

“ The Dallas red caps do not rest their argument upon any collective agreement. Their contention is that since the Brotherhood of Clerks, their then accredited representative for the purposes of the Railway Labor Act, had asked the terminal on October 11, 1938, for a conference to negotiate an agreement for working conditions and other related subjects, the subsequent act of the terminal in establishing the accounting and guarantee plan violated the Railway Labor Act and was therefore ineffective to change the existing arrangements by which the red caps retained the tips as their own. ”

“ As we have stated in discussing the Jacksonville case, the Railway Labor Act dealt with collective bargaining agreements only and not with the employment of individuals. This conclusion is pertinent in considering the effect of the Dallas request for collective bargaining. ”

“ As such employees, before the notice they were permitted by agreement to come upon the terminal property, render supervised service to the companies' customers and receive pay for performing this portion of the terminals' transportation business by retaining all tips received. This employment of the red caps was at will and subject to the employers' conclusions as to the desirability of continuing their employment. In businesses where tipping is customary, the tips, in the absence of an explicit contrary understanding, belong to the recipient. ”

“ Workmen's compensation acts are usually construed as including tips in wages or remuneration, with a tendency to make the inclusion of tips as wages turn upon the contemplation of the parties, express or implied, in wage contracts. [19] State minimum wage acts are generally silent as to tips. [20] Under the N.R.A. the inclusion of tips in wages on a plan similar to the accounting and guarantee plan, here involved, was proposed. ”

“ The institution of negotiations for collective bargaining does not change the authority of the carrier. The prohibitions of section 6 against change of wages or conditions pending bargaining and those of section 2, Seventh, are aimed at preventing changes in conditions previously fixed by collective bargaining agreements. ”

“ In No. 112, the Jacksonville case, petitioners find such an agreement in the contract of February 1, 1937, the 'Revised Agreement Between the Jacksonville Terminal Company and Employees Herein Named Represented by the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees.' The scope of that agreement is limited to the hours of service and working conditions of certain groups of employees in none of which do red caps appear. [13] Wages are not covered. ”

“ When the contract was negotiated, the red caps were not thought of as employees engaged in transportation service. [14] Evidently the red caps only authorized the contracting Brotherhood to represent them after the notice. [15] Neither party to the agreement took any steps in regard to the red caps under the 1937 agreement until after the disputed plan was instituted. ”

“ Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated. ”

“ Penn v. Spiers & Pond, Ltd., 1908, 1 K.B. 766 (C.A.) ; Great Western Railway v. Helps, 1918, A.C. 141 (H.L.) with Begendorf v. Swift & Co., Inc., 193 App.Div. 404, 183 N.Y.S. 917; Anderson v. Horling, 214 App.Div. 826, 211 N.Y.S. 487. But cf. Industrial Comm. v. ”