San Juan, Puerto Rico, June 20, 1967
I
It is not until the third revision of Mandatory Decree No. 27 for the Dairy and Cattle Industry, 29 R.&R.P.R. § 245n-491 et s~eq., is approved on April 20, 1965 that the Minimum Wage Board of Puerto Rico fixed an alternative compensation to driver-salesmen and assistant-salesmen of wage per hour or piece rate on the basis of a commission for the number of quarts of milk sold in door-to-door distribution or in distribution to business establishments. Both under the original Decree No. 18, approved November 27, 1950, 29 R.&R.P.R. § 245n-311 et seq., and under Decree No. 27 of July 5, 1957, and in its first and second revisions of March 23, 1960 and April 19, 1962 respectively, the fixing of compensation for said employees had been made on the basis of wage per hour exclusively.1 Each one of these decrees contained provisions concerning working conditions in *794relation to maximum working periods, weekly rest day, vacations, sick leave, and others.
Of special interest is the provision concerning maximum working periods — it only reiterates what was prescribed in § 4 of Act No. 379 of May 15, 1948, 29 L.P.R.A. § 273— to the effect that “No employer shall employ any workers whatsoever in the agricultural or industrial phase of the dairy industry for more than 8 hours in any day or for more than 48 hours in any week, unless he pays said worker for the hours worked in excess of 8 hours daily or 48 hours weekly at a rate of at least twice the wage rate he is then earning.” Pursuant to § 40(b) of the Minimum Wage Act of 1956, 29 L.P.R.A. § 246k, this provision, as well as all the others to which we have referred, subsisted in full force and effect despite the fact that the Board subsequently varied the rates of minimum wages. Campos Encarnación v. Sepúlveda, ante, p. 72; Martin Santos v. Urban Renewal and Housing Corporation, 89 P.R.R. 173 (1963).
Act No. 114 of June 30, 1965 (Sess. Laws, p. 319), 5 L.P.R.A. § 1120 (1966 SuppL, p. 80), was approved for the purpose of, as its title reads, decreeing “the nonapplicability of the laws and decrees on maximum working hours to milkmen and their helpers, in their peddling of fresh milk ... to authorize milk industry and cattle industry committees to recommend to the Minimum Wage Board and the latter to approve minimum commissions for such employees; to guarantee to milkmen and their helpers a seventh day for rest, leave of absence, sick leave, and other work conditions guaranteed to the other workers of the milk and cattle industries.”
It is imperative to copy entirely the statement of motives of this Act:
“Traditionally, the milk industry of Puerto Rico has been employing milkmen and milkmen helpers to peddle and deliver *795fresh milk and other dairy products. These peddlers and their helpers perform their task without direct supervision, their employer being thus unable to regulate or ascertain the hours actually worked by them; they are the ones who sell the product, provide the service and attention, and act according to their own judgment to keep and increase their clientage, and they are the only ones who really know such clientage; they render their services outside of the milk plants; go back to the milk plants for the sole purposes of returning the property and settling the accounts of the milk and other dairy products sold, and they are, in fact, peddlers.
“Traditionally, milkmen and their helpers have been compensated on the basis of a commission for each quart of milk sold, regardless of the actual hours worked, a compensation system which has turned out to be fair and reasonable, and has met with the approval of such milkmen and their helpers. Some doubt has arisen, though, as to whether or not such peddlers are covered by the exemption granted to traveling salesmen established by our laws with regard to maximum daily or weekly periods of work. This doubt has aroused a state of uncertainty in the milk and cattle industries, in the light of possible future claims for extra hours worked, and threatens the stability of the industries themselves, and labor-management relationships. It becomes, thus, desirable, so that the growth and expansion of the milk and cattle industries may not be deterred, that any possible doubt existing in the minds of the said milkmen and their helpers as to the applicability of the laws and decrees concerning maximum labor periods be dispelled.
“It is imperative, however, that milkmen be guaranteed adequate compensation on the basis of minimum commissions to be set by the Minimum Wage Board upon recommendation of the committees designated to set the minimum wage to be paid in the milk industry. They should also be guaranteed the rights so far enjoyed as to leave of absence, a seventh day for rest, sick leave, and other work conditions guaranteed to the other employees of the milk and cattle industries.”
With this history in mind, which was the real purpose of the Legislature in approving Act No. 114?
*796HH
The majority opinion upholds the Board’s action in fixing the alternative compensation on the ground that: (a) it cannot be affirmed that the legislative intent in approving Act No. 114 was to grant to said agency the power to fix wages on the basis of commission since § 16 of the Minimum Wage Act authorized, ever since 1964, the fixing of minimum wages by piece rates instead of wage rates per hour or alternatively in any economic activity;2 (b) the only effect of the cited act is that the employees to which it refers are not covered by the protection concerning the maximum workday granted by Act No. 379, swpra, but specifically affirms that they could work more than eight hours daily and more than forty-eight hours weekly receiving compensation only at a rate of one and one-half times for those extra hours, pursuant to the constitutional mandate, Art. II, § 16, of the Constitution of the Commonwealth of Puerto Rico.
An examination of Act No. 114 and the effect of all its provisions, analyzed as a whole and separately, lead me to a different conclusion. Let us see. Said act seeks to declare the nonapplicability of the laws — obviously Act No. 379— and decrees on maximum working hours to milkmen and their helpers. It is true that no express reference is made *797to the nonapplicability of the Minimum Wage Act as regards the fixing of wages. But it was unnecessary considering that (1) until then, as it appears from the foregoing history, the wages were being fixed per hour and tied in the decree itself to the guarantee of double pay; (2) since 1954 the function of the Board is limited to fixing minimum wages and has no intervention in the framing of other working conditions, among them the maximum workday, Marrero Cabrera v. Caribbean Refining Co., 93 P.R.R. 246 (1966). Because of that — in excluding them also from the fixing of wages per hour — it is necessary to state that “It is imperative, hoiuever, that milkmen be guaranteed adequate compensation on the basis of minimum commissions to be set by the Minimum Wage Board.” What need was there of reiterating a power which the Board admittedly had? The only logical explanation is that they had been excluded from the fixing of wages per hour. Note likewise that the power to fix wages on the basis of commission is preceded by the adverb however, meaning that the action of the Board was not entirely prohibited, but was limited to that specific manner which was authorized. On the other hand, the Act provides that “They should also be guaranteed the rights so far enjoyed as to leave of absence, a seventh day for rest, sick leave, and other work conditions guaranteed to the other employees of the milk and cattle industries.” Again, the only logical explanation is that they were excluded from the ambit of the action of the Board in incorporating as part of the decrees, pursuant to § 40(b), 29 L.P.R.A. § 246k, working conditions concerning leave of absence and sick leave. All this shows that the sole purpose could not have been, as indicated in the majority opinion, to exclude these employees from the provisions on overtime.
*798In view of the constitutional mandate already cited,3 A. D. Miranda, Inc. v. Falcon, 83 P.R.R. 708 (1961); cf. Communications Authority v. Superior Court (on reconsideration), 87 P.R.R. 1 (1963), and obviously to reconcile it to its provisions, the majority opinion is compelled to recognize that when driver-salesmen and assistant-salesmen work on the basis of a wage per hour they shall be entitled to receive overtime pay at the rate, at least, of time and a half the regular rate. This position frustrates with crystal clearness one of the announced legislative purposes in approving Act No. Ilk, to wit, that these employees would not be subject to the laws concerning maximum labor peidocls and their consequence of pay at a higher rate when work is performed in excess of the legal workday. Precisely, conscious of the constitutional limitation, the Legislature provided the only manner in which its purpose could be achieved: the payment of wages on the basis of commission. In this manner the protection of these employees was guaranteed through the intervention of the agency in fixing their wages, but on the basis of commission only.
Because of having acted beyond its legal power I would annul that part of the decree of the Minimum Wage Board which fixes a wage per hour to the driver-salesmen and assistant-salesmen in the phase of distribution of the dairy industry.4
Wage Rate per Hour
Zone I Zone II
Decree No. 18 $0.35 $0.30
Decree No. 27 $0.60
First Revision (1960) 0.65
Second Revision (1962) 0.74
Section 13 of the Minimum Wage Act of 1941, 29 L.P.R.A. § 224, expressly authorizes the fixing of wages by labor units, but when the Act of 1956 was approved a similar provision was omitted. It is in 1959, by Act No. 4 of May 8 (Sess. Laws, p. 14), that specifically a provision to that effect is incorporated but limited to the coffee harvest in the agricultural phase of the coffee industry; by Act No. 49 of June 6, 1963 (Sess. Laws, p. 75), leaf-sewing in the tobacco industry was also included; and finally, by Act No. 105 of June 26, 1964 (Sess. Laws, p. 324), such power is extended to “any other economic activity.” 18 Journal of Proceedings 1790.
It is significant that until this last Act of 1964 the fixing of wages was not authorized in an alternative manner, but the committees could fix minimum wages per units of work instead of wage rates per hour, when it was advisable because of the nature of the tasks to be performed.
“The right of every employee ... is recognized, ... to an ordinary workday which shall not exceed eight hours. An employee may work in excess of this daily limit only if he is paid extra compensation as provided by law, at a rate never less than one and one-half times the regular rate at which he is employed.”
I am fully aware that the salesmen on commission who are engaged in opening routes may be prejudiced with the fixing of a wage on commission only. However, nothing precludes the incorporation, by way of collective bargaining or in the decree itself of a provision, for these cases, guaranteeing a minimum compensation irrespective of the number of quarts distributed. At the hearing held the representatives of the enterprises accepted it so and suggested that the case be remanded to the *799Board with instructions to refer it to the Committee for the purposes of making a determination to that effect.