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. 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.* (b) Section 204 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 safety of operation and equipment.” 5 Section 204 further provides that it shall be the duty of the Commission to "establish for private carriers of property by motor vehicle, if need therefor 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 Act which have a bearing on the scope of section 204 include those which define common and contract carriers by motor vehicle, motor carriers, private 3 Part II of the Interstate Commerce Act, 49 Stat. 546, as 3); Motor Carrier Act, sec. 204 (a) (1), (2), 49 U.S.C. sec. 304 (a)(1). (2). Motor Carrier Act, sec. 204 (a) (3), 49 U.S.C. sec. 304 (a) (3). 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 in 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 enterprise." 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 determinined 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 streetrailway 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 facili ties for such transportation, and the regulation of such transportation, 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: Provided, 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 country which is in conflict with a requirement of such foreign country, but shall include as a condition to engaging in such operations within the jurisdiction of the United States, the observance 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 any place in the United States and any place in a foreign country, or between places in the United States through a foreign country; or (B) between any place in the United States and any place in a territory or possession of the United States insofar as such transportation takes place within the United States. The term 'foreign commerce' also includes transportation between places in a foreign country, or between a place in one foreign country and a place in another foreign country, insofar as such transportation takes place within the United States, but only for purposes of the application, to carriers engaged in such transportation, of the following provisions of this chapter: section 315 of this title (which relates to insurance for the protection of the public), section 321 of this title (which relates to designation of an agent for service of process), and those provisions of section 304 of this title which relate to qualifications and maximum hours of service of employees and safety of operation and equipment." INTERPRETATIVE BULLETIN 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] 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." 12 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 as 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 agricultural (including horticultural) commodities (not including manufac tured 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 livestock, fish (including shellfish), or agricultural horticultural) commodities (not including manufactured prod(including ucts 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': Provided further, however, 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, SECTION 782.2 REQUIREMENTS FOR (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 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 municipalities, except when such transportation is under a common control, management, or arrangement for a continuous carriage or shipment to or from a point without such municipality, municipalities, or zone, and provided that the motor carrier engaged 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 motor vehicle as a 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 under 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 v. Walling, 327 U.S. 463; Walling v. Casale, 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 Employees, 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 Commission's jurisdiction over private carriers is limited by the statute to private carriers of property by motor vehicle, as 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. 782.8. And see paragraph (d) of this section. 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 (b) (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. 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. (2d) 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 U.S. 820. The activities described in the text are frequently referred to herein, for purposes of brevity, as activities directly affecting What "safety of operation," or as safety-affecting activities. such activities are is explained in paragraph (d) of this section As to the meaning of "transporand in the following sections. tation in interstate and foreign commerce" under the Motor Carrier Act, see the statutory definitions in sec. 782.1, and see sec. 782.7. 15 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 U.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. v. Ispass, 330 U.S. 695; 17 Pyramid Motor Freight Corp. Levinson v. Spector Motor Service, 330 U.S. 649; Morris v. McComb, 332 U.S. 422; Overnight Motor Transp. Corp. v. Missel, 316 U.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 U.S. 774, rehearing denied, 332 U.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. (2d) 98 (C.A. 4), affirmed 316 U.S. 572; West v. 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 v. Brinks, Inc., 6 W.H. Cases 262 (N.D. Il.). 18 Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695; Porter v. Poindexter, 158 F. (2d) 759 (C.A. 10); Keeling v. Huber & Huber Motor Express, 57 F. Supp. 617 (W.D. Ky.); Crean v. Moran Transp. Lines (W.D. N.Y.), 9 Labor Cases, par. 62,416 (see also earlier opinion in 54 F. Supp. 765). (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 workweeks 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 work weeks 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 times 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 workweek 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 work weeks, 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 U.S. 649; Rogers Cartage Co. v. Reynolds, 166 F. (2d) 317 (C.A. 6); Opelika Bottling Co. v. Goldberg, 299 F. (2d) 37 (C.A. 5); Tobin v. Mason & Dixon Lines, Inc., 102 F. Supp. 466 (E.D. Tenn.). INTERPRETATIVE BULLETIN 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,19 a 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 safety-affecting activities of the character described above even though 19a See footnote 13. 20 Morris v. McComb, 332 U.S. 422. 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.20 (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 no basis for exemption under section 20a Goldberg v. Faber Industries, 291 F. (2d) 232. 21 Boutell v. Walling, 327 U.S. 463; Walling v. Casale, 51 F. Supp. 520. 22 Pyramid Motor Freight Corp. v. Ispass, 330 U.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. (2d) 203 (C.A. 6); Porter v. Poindexter, 158 F. (2d) 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. 13(b)(1) of the Fair Labor Standards Act.25 The Commission has also specifically stated that its jurisdiction under section 204 of the Motor Carrier Act relates to safety of operation of motor vehicles only, and to the safety of operation of such vehicles "on the highways of the country, and that alone." 26 Accordingly, the exemption does not extend to employees merely because they engage in activities affecting the safety of operation of motor vehicles operated on private premises. Nor does it extend to employees engaged solely in such activities as operating freight and passenger elevators in the carriers' terminals or moving freight or baggage therein or on the docks or streets by hand trucks, which activities have no connection with the actual operation of motor vehicles.27 Certain classes of employees who are not within the Commission's definitions of drivers, drivers' helpers, loaders, and mechanics are mentioned in sections 782.3-782.6, inclusive. Others who do not come within these definitions include the following, whose duties are considered by the Commission to affect safety of operation, if at all, only indirectly; stenographers (including those who write letters relating to safety or prepare accident reports); clerks of all classes (including rate clerks, billing clerks, clerks engaged in preparing schedules, and filing clerks in charge of filing accident reports, hours-of-service records, inspection reports and similar documents); foremen, warehousemen, superintendents, salesmen, and employees acting in an executive capacity.28 26 Walling v. Comet Carriers, 151 F. (2d) 107 (C.C.A. 2); Hansen v. Salinas Valley Ice Co. (Cal. App.) 144 P. (2d) 896; Reynolds v. Rogers Cartage Co., 71 F. Supp. 870 (W.D. Ky.), reversed on other grounds, 166 F. (d) 317 (C.A. 6); Earle v. Brinks, Inc., 54 F. Supp. 676 (S.D. N.Y.); Walling v. Villaume Box & Lumber Co., 58 F. Supp. 150 (D. Minn.); Hager v. Brinks, Inc., 11 Labor Cases, par. 63,296 (N.D. Ill.), 6 W.H. Cases 262; Walling v. DeSoto Creamery & Produce Co., 51 F. Supp. 938 (D. Minn.); Dallum v. Farmers Cooperative Trucking Assn., 46 F. Supp. 785 (D. Minn.); McLendon v. Bewley Mills (N.D. Tex.), 3 Labor Cases, par. 60,247, 1 W.H. Cases 934; Gibson v. Glasgow (Tenn. Sup. Ct.), 157 S.W. (2d) 814; cf. Morris v. McComb, 332 U.S. 422. See also sec. 782.1, footnotes 9-11, and Becs. 782.7-782.8. See also 26 Ex parte Nos. MC-2 and MC-3, 28 M.C.C. 125, 129. United States v. American Trucking Assns., 310 U.S. 534, 548. 21 Gordon's Transports v. Walling, 162 F. (2d) 203 (C.A. 6), certiorari denied 322 U.S. 774; Walling v. Comet Carriers, 57 F. Supp. 1018, affirmed, 151 F. (2d) 107 (C.A. 2), certiorari dismissed 328 U.S. 819; Gibson v. Glasgow (Tenn. Sup: Ct.), 157 S.W. (2d) 814; Ex parte Nos. MC-2 and MC-3, 28 M.C.C. 125, 128. See also Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695; Levinson v. Spector Motor Serv., 330 U.S. 649. 28 Ex parte Nos. MC-2 and MC-3, 28 M.C.C. 125; Ex parte No. MC-28, 13 M.C.C. 481. But see secs. 782.5(b) and 782.6(b) as to certain foremen and superintendents. Such employees are not within the section 13(b) (1) exemption.20 [13 F.R. 2346, Apr. 30, 1948, as amended at 28 F.R. 11686, Nov. 1, 1963] SECTION 782.3 DRIVERS 31 (a) A "driver," as defined by the Interstate Commerce Commission,30 is an individual who drives a motor vehicle in transportation which is, within the meaning of the Motor Carrier Act, in interstate or foreign commerce. This definition does not require that the individual be engaged in such work at all times; the Commission has recognized that even full-duty drivers devote some of their working time to activities other than such driving. "Drivers," as defined by the Commission, include, for example, such partial-duty drivers as the following, who drive in interstate or foreign commerce as part of a job in which they are required also to engage in other types of driving or nondriving work. Individuals whose driving duties are concerned with transportation, some of which is in intrastate commerce and some of which is in interstate or foreign commerce within the meaning of the Motor Carrier Act; individuals who ride on motor vehicles engaged in transportation in interstate or foreign commerce and act as assistant or relief drivers of the vehicles in addition to helping with loading, unloading, and similar work; drivers of chartered buses or of farm trucks who have many duties unrelated to driving or safety of operation of their vehicles in interstate transportation on the highways; and so-called "driver-salesmen" who devote much of their time to selling goods rather than to activities affecting such safety of operation. 32 20 Overnight Motor Transp. Co. v. Missel, 316 U.S. 572 (rate clerk who performed incidental duties as cashier and dispatcher); Levinson v. Spector Motor Service, 330 U.S. 649; Porter v. Poindexter, 158 F. (2d) 759 (C.A. 10) (checker of freight and bill collector); Potashnik Local Truck System v. Archer (Ark. Sup. Ct.), 179 S.W. (2d) 696 (night manager who did clerical work on way bills, filed day's accumulation of bills and records, billed out local accumulation of shipments, checked mileage on trucks and made written reports, acted as night dispatcher, answered telephone calls, etc.). 30 49 C.F.R., 1943 Cum. Supp., Part 191, sec. 191.1 (b) Ex parte No. MC-2, 3 M.C.C. 665; Ex parte No. MC-3, 23 M.C.C. 1; Ex parte No. MC-4, 1 M.C.C. 1. 31 As to what is considered transportation in interstate or foreign commerce within the meaning of the Motor Carrier Act, see sec. 782.7. 32 Levinson v. Spector Motor Service, 330 U.S. 649; Morris v. McComb, 332 U.S. 422; Richardson v. James Gibbons Co., 132 F. (2d) 627 (C.A. 4), affirmed 319 U.S. 44; Gavril v. Kraft Cheese Co., 42 F. Supp. 702 (N.D. Ill.); Walling v. Craig, 53 F. Supp. 479 (D. Minn.); Vannoy v. Swift & Co. (Mo. S. Ct.), 201 S.W. (2d) 350; Ex Parte No. MC-2, 3 M.C.C. 665; Ex parte No. MC-3, 23 M.C.C. 1; Ex parte Nos. MC-2 and MC-3, 28 M.C.C. 125; Ex parte No. MC-4, 1 M.C.C. 1. Cf. Colbeck v. Dairyland Creamery Co. (S.D. Sup. Ct.), 17 N.W. (2d) 262, in which the court held that the exemption did not apply to a refrigeration mechanic by reason solely of the fact that he crossed State lines in a truck in which he transported himself to and from the various places at which he serviced equipment belonging to his employer. |