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LINITED STATES OF AMERICA

Part 782—Exemption From Maximum Hours Provisions for

Certain Employees of Motor Carriers

Section
782.0 Introductory statement.
782.1 Statutory provisions considered.
782.2 Requirements for exemption in general.
782.3 Drivers.
782.4 Drivers' helpers.
782.5 Loaders.
782.6 Mechanics.
782.7 Interstate commerce requirements of exemption.
782.8 Special classes of carriers.

AUTHORITY: The provisions of this Part 782 issued under 52 Stat. 1060, as amended ;
29 U.S.O. 201 et seq.

SECTION 782.0 INTRODUCTORY

STATEMENT

(a) Since the enactment of the Fair Labor Standards Act of 1938, the views of the Administrator of the Wage and Hour Division as to the scope and applicability of the exemption provided by section 13(b) (1) of the act have been expressed in interpretations issued from time to time in various forms. This part, as of the date of its publication in the FEDERAL REGISTER, supersedes and replaces such prior interpretations. Its purpose is to make available in one place general interpretations of the Administrator which will provide "a practical guide to employers and employees as to how the office representing the public interest in enforcement of the law will seek to apply it.” The interpretations contained

in this part indicate, with respect to the scope and applicability of the exemption provided by section 13(b) (1) of the Fair Labor Standards Act, the construction of the law which the Secretary of Labor and the Administrator believe to be correct in the light of the decisions of the courts and of the Interstate Commerce Commission, and which will guide them in the performance of their administrative duties under the act unless and until they are otherwise directed by authoritative decisions of the courts or conclude, upon reexamination of an interpretation that it is incorrect. The interpretations contained in this part are interpretations on which reliance may be placed as provided in section 10 of the Portal-to-Portal Act, so long as they remain effective and are not modified, amended, rescinded, or determined by judicial authority to be incorrect.

(16 F.R. 1272, May 9, 1951)

SECTION 782.1 STATUTORY PROVI.

SIONS CONSIDERED

Skidmore ». Swift & Co., 323 U.S. 134.

"I'nder Reorganization Plan No. 6 of 1950 (15 F.R. 3174), effective May 24, 1930 and pursuant to General Order No. 45A issued by the Secretary of Labor on the same date, interpretations of the provisions (other than the child labor provisions) of the Fair Labor Standards Act, as amended, itre issued by the Administrator of the Wage and Hour Division on the advice of the Solicitor of Labor, subject to the general direction and control of the Secretary. See 15 F.R. 3290."

Section 161c) of the Fair Labor Standards Amendments of 1949 (63 Stitt. 910) provides :

"Any order, regulation, or interpretation of the Administrator of the Wilge and Hour Division or the Secretary of Libor, and any greement entered into by the Administrator or the Secretary, in effect under the provisions of the Fair Libor Standaris Act of 1939, as amended, on the effective date of this act, whil remain in effect as an order, regulation, interpretation. or ilgreement of the Administrator or the Secretary, ils the case may be, pursuant to this act, except to the extent thilt any such order, regulation, interpretation, or ilgreement may be inconsistent with the provisions of this act, or may from time to time bo imenlerl, modified, or rescinded by the Administrator or the Secretary, as the case may be, in accordance with the provisions of this act."

(a) Section 13(b) (1) of the Fair Labor Standards Act provides an exemption from the maximum hours and overtime requirements of section 7 of the act, but not from the minimum wage requirements of section 6. The exemption is applicable to:

: l'ublic Law 19, soth ('ong.. 1st sexs. (61 Stat. 8+), discussed in l'art 7990 istantement on cffect of l'ortal-to-Portal Act of 1947). See in this connection Reorganization I'lan No. of 1950 (15 F.R. 3171) and footnote 1, abure.

INTERPRETATIVE BULLETIN

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Any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 204 of the Motor Carrier Act, 1935. except that the exemption is not applicable to any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum" hours of service solely by virtue of section 204 (a) (3a) of Part II of the Interstate Commerce Act.3a The act confers no authority on the administrator to extend or restrict the scope of this exemption. It is settled by decisions of the United States Supreme Court that the applicability of the exemption to an employee otherwise entitled to the benefits of the Fair Labor Standards Act is determined exclusively by the existence of the power of the Interstate Commerce Commission under section 204 of the Motor Carrier Act, to establish qualifications and maximum hours of service with respect to him. It is not material whether such qualifications and maximum hours of service have actually been established by the Commission; the controlling consideration is whether the employee comes within the power of the Commission to do so. The exemption is not operative in the absence of such power, but an employee with respect to whom the Commission has such power is excluded, automatically, from the benefits of section 7 of the Fair Labor Standards Act.4

(6) Section 201 of the Motor Carrier Act, 1935, provides that it shall be the duty of the Interstate Commerce Commission to regulate common and contract carriers by motor vehicle as provided in that act, and that “to that end the Commission may establish reasonable requirements with respect to * * * qualifications and maximum hours of service of employees,

and sa fety of operation and equipment."' 5 Section 204 further provides that it shall be the duty of the ('ommission to “establish for private carriers of property by motor vehicle, if need there for is found, reasonable requirements to promote safety of operation, and to that end prescribe qualifications and maximum hours of service of employees, and standards of equipment."

(c) Other provisions of the Motor Carrier let which have a bearing on the scope of sertion 204 include those which clefine common and contract carriers by motor vehicle, motor carriers, private

* Part II of the Interstate Commerce Act, 49 Stat. 546, as amended ; 49 U.S.C. 304. 3: Pub. No. 939, Sith Cong.. 21 Sess, (Auk. 3, 19.5ti, sees. ? ind

Southland Gasoline C. 1. Bilpler. 319 U.S. 44: Boutell v. Willing, 327 U.S. 1633 : Lavinson i Spractor Motor Service, 3:30 1.S. 649 : l’yramid Motor Treight ('orp. 1. Ispass, 330 U.S. 6.95 : Morris 1. Macomb, 332 1.5, 1:22,

Motor (arrios Act, sec. 204 (it) (1), (2). 191.S.C. sec. 3304 " Motor Carrier Act, sec. 204 (a) (3), 49 V.S.C. sec. 304(a) (3).

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7 Motor Carrier Act, sec. 203(a) (14), (15), (16), (17), 49 U.S.C., sec. 303(a) (14), (15), (16), (17):

“(14) The term 'common carrier by motor vehicle' means any person which holds itself out to the general public to engage in the transportation by motor vehicle in interstate or foreign commerce of passengers or property of any class or classes thereof for compensation, whether over regular or irregular routes, except transportation by motor vehicle by an express company to the extent that such transportation has heretofore been subject to Part I, to which extent such transportation shall continue to be considered to be and shall be regulated as transportation subject to Part I."

"(15) The term 'contract carrier by motor vehicle' means any person which engages in transportation by motor vehicle of passengers or property in interstate or foreign commerce, for compensation (other than transportation referred to iu paragraph (14) of this section and the exception therein), under continuing contracts with one person or a limited number of persons either (a) for the furnishing of transportation services through the assignment of motor vehicles for a continuing period of time to the exclusive use of each person served or (b) for the furnishing of transportation services designed to meet the distinct need of each individual customer."

"(16) The term 'motor carrier' includes both a common carrier
by motor vehicle and a contract carrier by motor vehicle."

"(17) The term 'private carrier of property by motor vehicle'
means any person not included in the terms common carrier by
motor vehicle' or 'contract carrier by motor vehicle who or
which transports in interstate or foreign commerce by motor
vehicle property of which such person is the owner, lessee, or
bailee, when such transportation is for the purpose of sale, lease,
rent, or bailment, or in furtherance of any commercial enter-
prise."
8 Motor Carrier Act, sec. 203(a) (13), 49 U.S.C. sec. 303(a) (13):

"(13) The term 'motor vehicle' means any vehicle, machine,
tractor, trailer, or semitrailer propelled or drawn by mechanical
power and used upon the highways in the transportation of
passengers or property, or any combination thereof determined
by the Commission, but does not include any vehicle, locomotive,
or car operated exclusively on the rail or rails, or a trolley bus
operated by electric power derived from a fixed overhead wire,
furnishing local passengers transportation similar to street-
railway service."

. Motor Carrier Act, sec. 202(a), 49 U.S.C. sec. 302(a): “The provisions of this part apply to the transportation of passengers or property by motor carriers engaged in interstate or foreign commerce and to the procurement of and the provisions of facilities for such transportation, and the regulation of such trans: portation, and of the procurement thereof, and the provision of facilities therefor, is hereby vested in the Interstate Commerce Commission."

10 Motor Carrier Act, sec. 203(a) (10), (11), 49 U.S.C., sec. 303(a) (10), (11) :

"(10) The term 'interstate commerce' means commerce between any place in a State and any place in another State or between places in the same State through another State, whether such commerce moves wholly by motor vehicle or partly by motor vehicle and partly by rail, express, or water: Providerl, That to the extent that such transportation in 'interstate commerce between points in Alaska and points in other States is performed within a foreign country, the application of this chapter shall not include any requirement as to conduct in such foreign coun: try which is in conflict with a requirement of such foreign country, but shall include as a condition to engaging in such operiltions within the jurisdiction of the lnited States, the observanc as to the entire service, of the requirements of this chapter with respect to rates, fares, charges, and practices pertaining to such transportation."

**(11) The term 'foreign commerce' means commerce, whether such commerce moves wholly by motor vehicle or partly by motor vehicle and partly by rail, express, or water, (A) between illy place in the inited States and any place in a foreign country, or between places in the l'nited States through a foreign country; or (B) between any place in the United States and any place in al territory or possession of the l'nited States insofar is such transportation takes place within the l'nited States.

The term foreign commerce also includes transportation between places in : foreign country, or between it place in one foreign country ind it place in another foreign country, insofar ils such transportation takes place within the l'nited States, but only for purposes of the ripplication, to carriers engaged in such transportition of the following provisions of this chapter: section 31.7 of this title (which relates to insurance for the protection of the public). section :321 of this title (which relates to desig: nation of in agent for service of process), and those provisions of Section 304 of this title which relate to qualifications and maximum hours of sorrier of employees illid safety of operation ind quipment."

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SECTION 782.2 REQUIREMENTS FOR

EXEMPTION IN GENERAL

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(a) The exemption of an employee from the hours provisions of the Fair Labor Standards Act under section 13(b)(1) depends both on the class to which his employer belongs and on the class of work involved in the employee's job. The power of the Interstate Commerce Commission to establish maximum hours and qualifications of service of employees, on which exemption depends, has been held to extend to those classes of employees and those only who (1) are employed by carriers whose transportation of passengers or property by motor vehicle is subject to the Commission's jurisdiction under section 204 of the Motor Carrier Act 13 and (2) engage in activities of a character directly affecting the safety of operation of motor vehicles in the transportation on the public highways of passengers or property in interstate or foreign commerce within the mean

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exclusive exercise of the power of regulation of intrastate commerce by motor carriers on its highways; 11 and those which expressly make section 204 applicable to certain transportation in interstate or foreign commerce which is in other respects excluded from regulation under the act.12

[13 F.R. 2346, Apr. 30, 1948, as amended at 22 F.R. 2662, Apr. 17, 1957, 28 F.R. 11685, Nov. 1, 1963, 29 F.R. 1840, Feb. 7, 1964]

11 Motor Carrier Act, sec. 202(b), 49 U.S.C. sec. 302 (b): Nothing in this part shall be construed to affect the powers of taxation of the several States or to authorize a motor carrier to do an Intrastate business on the highways of any State, or to interfere with the exclusive exercise by each State of the power of regulation of Intrastate commerce by motor carriers on the highways thereof."

ir Motor Carrier Act, sec 202(c), 49 Stat. 543, as amended ; 49 U.S.C., 302(c): "Notwithstanding any provision of this section or of section 203, the provisions of this part, except the provisions of section 204 relative to qualifications and maximum hours of service of employees and safety of operation and equipment, shall not apply

(1) To transportation by motor vehicle by a carrier by a railroad subject to part I, or by a water carrier subject to part III, or by a freight forwarder subject to part IV, incidental to transportation or service subject to such parts, in the performance within terminal areas of transfer, collection, or delivery services ; but such transportation shall be considered to be and shall be regulated as transportation subject to part I when performed by such carrier by railroad, as transportation subject to part III when performed by such water carrier, and as transportation or service subject to part IV when performed by such freight forwarder;

(2) To transportation by motor vehicle by any person (whether as agent or under a contractual arrangement) for a common carrier by railroad subject to part I, an express company subject to part I, a motor carrier subject to this part, a water-carrier subject to part III, or a freight forwarder subject to part IV, in the performance within terminal areas of transfer, collection, or delivery service; but such transportation shall be considered to be performed by such carrier, express company, or freight forwarder as part of, and shall be regulated in the same manner as, the transportation by railroad, express, motor vehicle, or water, or the freight forwarder transportation or service, to which such services are incidental.

Motor Carrier Act sec. 203 (b), 49 U'.S.C. 303 (b): "Nothing in this part, except the provisions of section 204 relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment shall be construed to include (1) motor vehicles employed solely in transporting school children and teachers to or from school'; or (2) taxicabs, or other motor vehicles performing a bona fide taxicab service, having a capacity of not more than six passengers and not operated on a regular route or between fixed termini; or (3) motor vehicles owned or operated by or on behalf of hotels and used exclusively for the transportation of hotel patrons between hotels and local railroad or other common carrier stations; or (4) motor vehicles operated, under authorization, regulation, and control of the Secretary of the Interior, principally for the purpose of transporting persons in and about the national parks and national monuments; or (4a) motor vehicles controlled and operated by any farmer when used in the transportation of his agricultural (including horticultural) commodities and products thereof, or in the transportation of supplies to his farm; or (5) motor vehicles controlled and operated by a cooperative association is defined in sections 1141-1141j of Title 12, as amended, or by a federation of such cooperative associations, if such federation possesses no greater powers or purposes than cooperative associations so defined ; or (6) motor vehicles used in carrying property consisting of ordinary livestock, fish (including shellfish), or ilgricultural (including horticultural) commodities (not including manufactured products thereof), if such motor vehicles are not used in carrying any other property, or passengers, for compensation : Provided, That the words property consisting of ordinary live. stock, fish (including shellfish), agricultural (including horticultural) commodities (not including manufactured prodnicts thereof)' as used herein shall include property shown as 'Exempt' in the Commodity List' incorporated in ruling numbered 107, March 19, 1958, Bureau of Motor Carriers, Interstate Commerce Commission, but shall not include property shown therein as 'Not exempt': Prorideal further, howerer, That notwithstanding the preceding proviso the words 'property consisting of ordinary livestock, fish (including shellfish), or agricultural (including horticultural) commodities (not including manufactured products thereof). shall not be deemed to include frozen fruits. frozen berries, frozen vegetables, cocoa beans,

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coffee beans, tea, bananas, or hemp, and wool imported from any foreign country, wool tops and noils, or wool waste (carded, spun, woven, or knitted), and shall be deemed to include cooked or uncooked (including breaded) fish or shellfish when frozen or fresh (but not including fish and shellfish which have been treated for preserving, such as canned, smoked, pickled, spiced, corned or kippered products); (7) motor vehicles used exclusively in the distribution of newspapers ; or (7a) the transportation of persons or property by motor vehicle when incidental to transportation by aircraft, nor, unless and to the extent that the Commission shall from time to time find that such application is necessary to carry out the national transportation policy declared in the Interstate Commerce Act, shall the provisions of this part, except the provisions of section 204 of this part relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment apply to; (8) the transportation of passengers or property in interstate or foreign commerce wholly within a municipality or between contiguous municipalities or within a zone adjacent to and commercially a part of any such municipality or municipal. ities, except when such transportation is under a common control, management, or arrangement for a continuous carriage or shipwent to or from a point without such municipality, municipal ities, or zone, and provided that the motor carrier engilged in such transportation of passengers over regular or irregular route or routes in interstate commerce is also lawfully engaged in the intrastate transportation of passengers over the entire length of such interstate route or routes in accordance with the laws of each State having jurisdiction; or (9) the casual, occasional, or reciprocal transportation of passengers or property by motor vehicle in interstate or foreign commerce for compensation by any person not engaged in transportation by inotor vehicle as i regular occupation or business, unless, in the case of transportation of passengers, such transportation is sold or offered for sale, or provided or procured or furnished or arranged for, by a broker, or by any other persons who sells or offers for sale transportation furnished by a person lawfully engaged in the transportation of passengers by motor vehicle innder a certificate or permit issued under this part or under a pending application for such a certificate or permit; or (10) the emergency transportation of any accidentally wrecked or disabled motor vehicle in interstate or foreign commerce by towing."

13 Boutell r. Walling. 327 V.S. 463; Walling 1. Canale, 51 F. Supp. 520. And see Ex parte Nos. MC-2 and MC 3. In the Matter of Maximum Hours of Service of Motor Carrier Em. ployees, 28 M.C.C. 125, 132.

The carriers whose transportation activities are subject to the Commission's jurisdiction are specified in the Motor Carrier Act itself. See sec. 782.1. As noted in that section, the Commixsion's jurisdiction over private carriers is limited by the statute to private carriers of property by motor vehicle, ils defined therein, while its jurisdiction extends to common and contract carriers of both passengers and property. See also the discus. sion of special classes of carriers in sec. 782.S. And no Jaragraph (d) of this section.

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ing of the Motor Carrier Act.14 The Commission has determined, and the United States Supreme Court has accepted its determination, that activities of this character are included in the kinds of work which the Commission has defined as the work of drivers, drivers' helpers, loaders, and mechanics 15 employed by such carriers, and that no other classes of employees employed by such carriers perform duties directly affecting such "safety of operation.” 16

(6)(1) The exemption is applicable, under decisions of the United States Supreme Court, to those employees and those only whose work involves engagement in activities consisting wholly or in part of a class of work which is defined by the Interstate Commerce Commission (1) as that of a driver, driver's helper, loader, or mechanic, and (2) as directly affecting the safety of operation of motor vehicles on the public highways in transportation in interstate or foreign commerce within the meaning of the Motor Carrier Act.17 In determining whether an employee falls within such an exempt category, neither the name given to his position nor that given to the work that he does is controlling;18 what is controlling is the character of the activities involved in the performance of his job.

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(2) As a general rule, if the bona fide duties of the job performed by the employee are in fact such that he is (or, in the case of a member of a group of drivers, drivers’ helpers, loaders or mechanics employed by a common carrier and engaged in safety-affecting occupations, that he is likely to be) called upon in the ordinary course of his work to perform, either regularly or from time to time, safety-affecting activities of the character described in subparagraph (1) of this paragraph, he comes within the exemption in all work weeks when he is employed at such job. This general rule assumes that the activities involved in the continuing duties of the job in all such workweeks will include activities which the Commission has determined directly affect the safety of operation of motor vehicles on the public highways in transportation in interstate commerce. Where this is the case, the rule applies regardless of the proportion of the employee's time or of his activities which is actually devoted to such safety-affecting work in the particular workweek, and the exemption will be applicable even in a workweek when the employee happens to perform no work directly affecting “safety of operation.” On the other hand, where the continuing duties of the employee's job have no substantial direct effect on such safety of operation or where such safety-affecting activities are so trivial, casual, and insignificant as to be de minimis, the exemption will not apply to him in any work week so long as there is no change in his duties. 19 If in particular workweeks other duties are assigned to him which result, in those work weeks, in his performance of activities directly affecting the safety of operation of motor vehicles in interstate commerce on the public highways, the exemption will be applicable to him in those workweeks, but not in the workweeks when he continues to perform the duties of the non-safety-affecting job.

(3) Where the same employee of a carrier is shifted from one job to another periodically or on occasion, the application of the exemption to him in a particular workweek is tested by application of the above principles to the job or jobs in which he is employed in that workweek. Similarly, in the case of an employee of a private carrier whose

19 Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695; Morris v. McComb, 332 U.S. 422; Levinson v. Spector Motor Service, 330 C.S. 649 ; Rogers Cartage Co. v. Reynolds, 166 F. (20) 317 (C.A. 6); Opelika Bottling Co. v. Goldberg. 299 F.(20) 37 (C.A. 5) ; Tobin v. Mason & Dixon Lines, Inc., 102 F. Supp.

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14 United States v. American Trucking Assns., 310 U.S. 534 ; Levinson v. Spector Motor Service, 330 U.S. 649 ; Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695 ; Ex parte No. MC-28, 13 M.C.C. 481 ; Ex parte Nos. MC-2 and MC-3, 28 M.C.C. 125 ; Walling v. Comet Carriers, 151 F.(20) 107 (C.A. 2); Gordon's Transports v. Walling, 162 F.(2d) 203 (C.A. 6), certiorari denied 332 U.S. 774 ; rehearing denied 332 C.S. 820.

The activities described in the text are frequently referred to herein, for purposes of brevity, as activities directly affecting "safety of operation," or as safety-affecting activities. What such activities are is explained in paragraph (d) of this section and in the following sections. As to the meaning of "transportation in interstate and foreign commerce" under the Motor Carrier Act, see the statutory definitions in sec. 782.1, and see sec. 782.7.

18 See secs. 782.3 to 782.6.

16 Ex parte No. MC-2, 11 M.C.C. 203 : Ex parte No. MC-28, 13 M.C.C. 481 ; Ex parte No. MC-3, 23 M.C.C. 1 ; Ex parte Nos. MC-2 and MC-3, 28 M.C.C. 125 ; Levinson v. Spector Motor Service, 330 C.S. 649: Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695 ; Southland Gasoline Co. v. Bayley, 319 U.S. 44. See also paragraph (d) of this section and secs. 782.3-782.8.

17 Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695 ; Levinson v. Spector Motor Service, 330 U.S. 649 ; Morris v. McComb, 332 U.S. 422 ; Overnight Motor Transp. Corp. v. Missel, 316 V.S. 572 ; Southland Gasoline Co. v. Bayley, 319 U.S. 44; Gordon's Transports v. Walling, 162 F.(2d) 203 (C.A. 6), certiorari denied, 332 V.S. 774, rehearing denied, 332 l'.S. 820.

Although the Supreme Court has recognized that the special knowledge and experience required to determine what classifications of work affects safety of operation of interstate motor carriers have been applied by the Commission, it has made it clear that the determination whether or not an individual employee is within any such classification is to be determined by judicial process. Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695 ; Cf. Missel v. Overnight Motor Transp., 40 F. Supp. 174 (D. Md.), reversed on other grounds 126 F.(20) 98 (C.A. 4), affirmed 316 V.S. 572; West 1. Smoky Mountains Stages, 40 F. Supp. 296 (N.D. Ga.); Magann v. Long's Baggage Transfer Co., 39 F. Supp. 742 (W.D. Va.) ; Walling v. Burlington Transp. Co. (D. Nebr.), 5 W.H. Cases 172, 9 Labor Cases par. 62,576; Hager 1. Brinks, Inc., 6 W.H. Cases 262 (N.D. ni.).

in Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695 ; Porter r. Poindexter, 158 F.(20) 759 (C.A. 10); Keeling v. Huber & Huber Motor Express, 57 F. Supp. 617 (W.1). Ky.); Crean. r. Moran Transp. Lines (W.D. N.Y.), 9 Labor Cases, par. 62,416 (see also earlier opinion in 54 F. Supp. 765).

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job does not require him to engage regularly in exempt safety-affecting activities described in subparagraph (1) of this paragraph and whose engagement in such activities occurs sporadically or occasionally as the result of his work assignments at a particular time, the exemption will apply to him only in those workweeks when he engages in such activities. Also, because the jurisdiction of the Interstate Commerce Commission over private carriers is limited to carriers of property,19a driver, driver's helper, loader, or mechanic employed by a private carrier is not within the exemption in any workweek when his safetyaffecting activities relate only to the transportation of passengers and not to the transportation of property.

(c) The application of these principles may be illustrated as follows:

(1) In a situation considered by the United States Supreme Court, approximately 4 percent of the total trips made by drivers employed by a common carrier by motor vehicle involved the hauling of interstate freight. Since it appeared that the employer, as a common carrier, was obligated to take such business, and that any driver might be called upon at any time to perform such work, which was indiscriminately distributed among the drivers, the Court considered that such trips were a natural, integral and apparently inseparable part of the common carrier service performed by the employer and the driver employees. Under these circumstances, the Court concluded that such work, which directly affected the safety of operation of the vehicles in interstate commerce, brought the entire classification of drivers employed by the carrier under the power of the Interstate Commerce Commission to establish qualifications and maximum hours of service, so that all were exempt even though the interstate driving of particular employees was sporadic and occasional, and in practice some drivers would not be called upon for long periods to perform any such work.20

(2) In another situation, the United States Court of Appeals (Seventh Circuit) recently held that the exemption would not apply to truck drivers employed by a private carrier on intrastate routes who engaged in no sa fety-affecting activities of the character described above even though

other drivers of the carrier on interstate routes were subject to the jurisdiction of the Interstate Commerce Commission. The court reaffirmed the principle that the exemption depends not only upon the class to which the employer belongs but also the activities of the individual employee.20a

(d) The limitations, mentioned in paragraph (a) of this section, on the regulatory power of the Interstate Commerce Commission under section 204 of the Motor Carrier Act are also limitations on the scope of the exemption. Thus, the exemption does not apply to employees of carriers who are not carriers subject to the Commission's jurisdiction, or to employees of noncarriers such as commercial garages, firms engaged in the business of maintaining and repairing motor vehicles owned and operated by carriers, firms engaged in the leasing and renting of motor vehicles to carriers and in keeping such vehicles in condition for service pursuant to the lease or rental agreements.21 Similarly, the exemption does not apply to an employee whose job does not involve engagement in any activities which the Commission has defined as those of drivers, drivers' helpers, loaders, or mechanics, and as directly affecting the "safety of operation" of motor vehicles.22 Except in so far as the Commission has found that the activities of drivers, drivers' helpers, loaders, and mechanics, as defined by it, directly affect such "safety of operation," it has disclaimed its power to establish qualifications or maximum hours of service under section 204 of the Motor Carrier Act.23 The Commission has defined “safety of operation" as used in that section to mean "the safety of operation of motor vehicles in the transportation of passengers or property in interstate or foreign commerce, and that alone.” 24 Thus, the activities of drivers, drivers' helpers, loaders, or mechanics in connection with transportation which is not in interstate or foreign commerce within the meaning of the Motor Carrier Act provide no basis for exemption under section

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20a Goldberg v. Faber Industries. 291 F.(20) 232.

21 Boutell v. Walling, 327 U.S. 463; Walling v. Casale, 51 F. Supp. 520.

* Pyramid Motor Freight Corp. v. Ispass, 330 V.S. 695 ; Levinson v. Spector Motor Service, 330 U.S. 649; United States v. American Trucking Assn., 310 U.S. 534 ; Gordon's Transports v. Walling, 162 F. (2) 203 (C.A. 6); Porter v. Poindexter, 158 F.(20) 759 (C.A. 10).

23 Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695.

24 Ex parte Nos. MC-2 and MC-3 (Conclusions of Law No. 1), 28 M.C.C. 125, 139.

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19a See footnote 13. 20 Morris v. McComb, 332 C.S. 422.

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