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Any employee with respect to whom the Interstate
Commerce Commission has power to establish qualifica-

carriers of property by motor vehicle," and motor
tions and maximum hours of service pursuant to the pro-

vehicle ;8 those which confer regulatory powers visions of section 204 of the Motor Carrier Act, 1935.

on the Commission with respect to the transportaexcept that the exemption is not applicable to tion of passengers or property by motor carriers any employee with respect to whom the Interstate engaged in interstate or foreign commerce (as Commerce Commission has power to establish defined in the act) 10 and reserve to each State the qualifications and maximum hours of service solely by virtue of section 204(a) (3a) of Part II

* Motor Carrier Act, sec. 203(a) (14), (15), (16), (17), 49 of the Interstate Commerce Act 3a The act con

U.S.C., sec. 303(a) (14), (15), (16), (17).

(14) The term 'common carrier by motor vehicle' means any fers no authority on the Administrator to extend

person which holds itself out to the general public to engage in

the transportation by motor vehicle in interstate or foreign or restrict the scope of this exemption. It is

commerce of passengers or property of any class or classes

thereof for compensation, whether over regular or irregular settled by decisions of the United States Supreme

routes, except transportation by motor vehicle by an express Court that the applicability of the exemption to

company to the extent that such transportation has heretofore

been subject to Part I, to which extent such transportation shall an employee otherwise entitled to the benefits of

continue to be considered to be and shall be regulated as trans

portation subject to Part I." the Fair Labor Standards Act is determined ex

"(15) The term 'contract carrier by motor vehicle' means any

person which engages in transportation by motor vehicle of pagclusively by the existence of the power of the In sengers or property in interstate or foreign commerce, for com

pensation (other than transportation referred to in paragrapb terstate Commerce Commission, under section 204 (14) of this section and the exception therein), under continuing of the Motor Carrier Act, to establish qualifica

contracts with one person or a limited number of persons either

(a), for the furnishing of transportation services through the tions and maximum hours of service with respect

assignment of motor vehicles for a continuing period of time to

the exclusive use of each person served or (b) for the furnishing to him. It is not material whether such qualifi

of transportation services designed to meet the distinct need of

each individual customer." cations and maximum hours of service have actu

“(16) The term 'motor carrier' includes both a common carrier

by motor vehicle and a contract carrier by motor vehicle." ally been established by the Commission; the con

(17) The term 'private carrier of property by motor vehicle'

means any person not included in the terms .common carrier by trolling consideration is whether the employee motor vehicle' or 'contract carrier by motor vehicle, who or

which transports in interstate or foreign commerce by motor comes within the power of the Commission to do vehicle, property of which such person is the owner, lessee, or

bailee, when such transportation is for the purpose of sale, lease, so. The exemption is not operative in the absence

rent, or bailment, or in furtherance of any commercial enterof such power, but an employee with respect to

prise."

& Motor Carrier Act, sec. 203(a) (13), 49 U.S.C. sec. 303 (a) (18) : whom the Commission has such power is excluded,

(13) The term 'motor vehicle' means any vehicle, machine,

tractor, traller, or semitrailer propelled or drawn by mechanical automatically, from the benefits of section 7 of the power and used upon the highways in the transportation of

passengers or property, or any combination thereof determinined Fair Labor Standards Act.

by the Commission, but does not include any vehicle, locomotive,

or car operated exclusively on the rail or rails, or a trolley bus (6) Section 204 of the Motor Carrier Act, operated by electric power derived from a fixed overhead wire,

furnishing local passengers transportation similar to street. 1935, provides that it shall be the duty of the railway service." Interstate Commerce Commission to regulate

' 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 common and contract carriers by motor vehicle

commerce and to the procurement of and the provisions of facili

ties for such transportation, and the as provided in that act, and that “to that end the

egulation of such trans

portation, and of the procurement thereof, and the provision of Commission may establish reasonable require. facilities therefor, is hereby vested in the Interstate Commerce

Commission." ments with respect to qualifications and 10 Motor Carrier Act, sec. 203 (a) (10), (11), 49 U.S.C., sec.

303(a) (10), (11): maximum hours of service of employees, and (10) The term Interstate commerce' means commerce be

Section

tween any place in a State and any place in another State or safety of operation and equipment.”

between places in the same State through another State, whether

such commerce moves wholly by motor vehicle or partly by motor 204 further provides that it shall be the duty of

vehicle and partly by rail, express, or water: Provided, That to

the extent that such transportation in 'interstate commerce the Commission to "establish for private carriers

between points in Alaska and points in other States is performed

within a foreign country, the application of this chapter shall of property by motor vehicle, if need therefor is

not include any requirement as to conduct in such foreign counfound, reasonable requirements to promote sa fety try which is in conflict with a requirement of such foreign coun

try, but shall include as a condition to engaging in such operaof operation, and to that end prescribe qualifica tions within the jurisdiction of the lnited States, the observance

as to the entire service, of the requirements of this chapter with tions and maximum hours of service of employees,

respect to rates, fares, charges, and practices pertaining to such

transportation. and standards of equipment.

"(11) The term 'foreign commerce' means commerce, whether

such commerce moves wholly by motor vehicle or partly by motor (c) Other provisions of the Motor Carrier Act

vehicle and partly by rail, express, or water, (A) between any

place in the United States and any place in a foreign country, or which have a bearing on the scope of section 204

between places in the (nited States through a foreign country; include those which define common and contract or (B) between any place in the l'nited States and any place in

a territory or possession of the United States insofar as such

The term

transportation takes place within the United States. carriers by motor vehicle, motor carriers, private

'foreign commerce' also includes transportation between places

in a foreign country, or between a place in one foreign country 3 Part II of the Interstate Commerce Act, 49 Stat. 546. as

and a place in another foreign country, insofar as such transa mended. 49 T.S.C. 304.

portation takes place within the United States, but only for 3a Pub. No. 939, 84th Cong., 2d Sess, (Aug. 3, 1956, sees. 2 and

purposes of the application, to carriers engaged in such trans

portation, of the following provisions of this chapter : section * Southland Gasoline Co. v. Bayley, 319 1'.S. 44: Boutell V,

315 of this title (which relates to insurance for the protection Walling, 327 V.S. 463 ; Levinson v. Spector Motor Service, 330

of the public), section 321 of this title (which relates to desigU.S. 649; Pyramid Motor Freight Corp. 1. Ispass, 330 U.S. 695 ;

nation of an agent for service of process), and those provisions Morris v. McComb, 332 U.S. 422.

of section 304 of this title which relate to qualifications and 3 Motor Carrier Act, sec. 204 (a) (1), (2), 49 U.S.C. sec. 304

maximum hours of service of employees and safety of operation (a) (1), (2).

and equipment." Motor Carrier Act, sec. 204 (a) (3), 49 U.S.C. sec. 304 (a) (3).

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SECTION 782.2 REQUIREMENTS FOR

EXEMPTION IN GENERAL

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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)

(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

11 Motor Carrier Act, sec. 202(b), 49 U.S.C. dec. 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. 643, 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 ter. mini; 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 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 livestock, fish (including shellfish), or agricultural (including horticultural) commodities (not including manufactured products 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, howerer, That not. withstanding the preceding proviso the words 'property consisting of ordinary livestock, fish (including shellfish), or agri. cultural (including horticultural) commodities manufactured products thereof)' shall not be deemed to include

(not including frozen fruits. frozen berries, frozen vegetables, cocoa beans,

C.

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, municipal. ities, 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 1. 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 discuis. sion of special classes of carriers in sec. 782.8. And see paragraph (d) of this section.

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ing of the Motor Carrier Act.14 The Commission (2) As a general rule, if the bona fide duties of
has determined, and the United States Supreme
Court has accepted its determination, that activi-

the job performed by the employee are in fact such

that he is (or, in the case of a member of a group ties of this character are included in the kinds of work which the Commission has defined as the

of drivers, drivers' helpers, loaders or mechanics work of drivers, drivers' helpers, loaders, and

employed by a common carrier and engaged in mechanics 15 employed by such carriers, and that

safety-affecting occupations, that he is likely to no other classes of employees employed by such

be) called upon in the ordinary course of his work carriers perform duties directly affecting such

to perform, either regularly or from time to time, "safety of operation." i

safety-affecting activities of the character de(6)(1) The exemption is applicable, under de scribed in subparagraph (1) of this paragraph, cisions of the United States Supreme Court, to he comes within the exemption in all workweeks those employees and those only whose work in when he is employed at such job. This general volves engagement in activities consisting wholly rule assumes that the activities involved in the or in part of a class of work which is defined by continuing duties of the job in all such workweeks the Interstate Commerce Commission (1) as that

will include activities which the Commission has of a driver, driver's helper, loader, or mechanic, determined directly affect the safety of operation and (2) as directly affecting the safety of opera of motor vehicles on the public highways in transtion of motor vehicles on the public highways in portation in interstate commerce. Where this is transportation in interstate or foreign commerce the case, the rule applies regardless of the proporwithin the meaning of the Motor Carrier Act.17 tion of the employee's times or of his activities In determining whether an employee falls within which is actually devoted to such safety-affecting such an exempt category, neither the name given work in the particular workweek, and the exempto his position nor that given to the work that he tion will be applicable even in a workweek when does is controlling;18 what is controlling is the the employee happens to perform no work directly character of the activities involved in the per affecting "safety of operation.” On the other formance of his job.

hand, where the continuing duties of the employ

ee's job have no substantial direct effect on such 14 United States v. American Trucking Assns., 310 U.S. 534 ; Levinson v. Spector Motor Service, 330 U.S. 649; Pyramid safety of operation or where such safety-affecting 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 activities are so trivial, casual, and insignificant M.C.C. 125 ; Walling v. Comet Carriers, 151 F.(20) 107 (C.A. 2); Gordon's Transports v. Walling, 162 F.(20) 203 (C.A. 6), cer as to be de minimis, the exemption will not apply tiorari denied 332 U.S. 774; rehearing denied 332 U.S. 820,

The activities described in the text are frequently referred to him in any workweek so long as there is no to herein, for purposes of brevity, as activities directly affecting "safety of operation," or as safety-affecting activities. What change in his duties.19 If in particular worksuch activities are is explained in paragraph (d) of this section and in the following sections. As to the meaning of "transpor

weeks other duties are assigned to him which tation in interstate and foreign commerce" under the Motor Car. rier Act, see the statutory definitions in sec. 782.1, and see result, in those workweeks, in his performance of sec. 782.7. 16 See secs, 782.3 to 782.6.

activities directly affecting the safety of operation 18 Ex parte No. MC-2, 11 M.C.C. 203 ; Ex parte No. MC-28,

of motor vehicles in interstate commerce on the 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, public highways, the exemption will be applicable 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. to him in those workweeks, but not in the work17 Pyramid Motor Freight Corp. v. Ispass, 330 s. 695 ;

weeks when he continues to perform the duties of Levinson v. Spector Motor Service, 330 U.S. 649; Morris v. McComb, 332 U.S. 422 ; Overnight Motor Transp. Corp. v. Missel,

the non-safety-affecting job. 316 U.S. 572 ; Southland Gasoline Co. v. Bayley, 319 ('.S. 44 ; Gordon's Transports v. Walling, 162 F.(2d) 203 (C.A. 6), cer

(3) Where the same employee of a carrier is tiorari denied, 332 U.S. 774, rehearing denied, 332 L'.s. 820. Although the Supreme Court has recognized that the special

shifted from one job to another periodically or on knowledge and experience required to determine what classifications of work affects safety of operation of interstate motor

occasion, the application of the exemption to him carriers have been applied by the Commission, it has made it clear that the determination whether or not an individual em

in a particular workweek is tested by application ployee is within any such classification is to be determined by judicial process, Pyramid Motor Freight Corp. v. Ispass, 330

of the above principles to the job or jobs in which 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),

he is employed in that workweek. Similarly, in
attirmed 316 U.S. 572; West v. Smoky Mountains Stages, 10
F. Supp. 296 (N.D. Ga.); Magann v. Long's Baggage Transfer

the case of an employee of a private carrier whose
Co., 39 F. Supp. 742 (W.D. Va.); Walling v. Burlington Transp.
Co. (D. Nebr.), 5 W.H. Cases 172, 3 Labor Cases par. 62,576 ;
Hager v. Brinks, Inc., 6 W.H. Cases 262 (N.D. m.).

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

Morris v. McComb, 332 U.S. 422 ; Levinson v. Spector Motor 18 Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695 ; Porter

Service, 330 U.S. 619; Rogers Cartage Co. v. Reynolds, 166 F. v. Poindexter, 158 F.(20) 759 (C.A, 10); keeling v. Huber &

(20) 317 (C.A. 6); Opelika Bottling Co. v. Goldberg, 299 F.(20) Huber Motor Express, 57 F. Supp. 617 (W.D. ky.); Crean v.

37 (C.A, 5); Tobin v. Mason & Dixon Lines, Inc., 102 F. Supp. Moran Transp. Lines (W.D. N.Y.), 9 Labor Cases, par. 62,416

466 (E.D. Tenn.). (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, 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

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.?

(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.

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.(20) 203 (C.A. 6); Porter v. Poindexter, 158 F.(2d) 759 (C.A. 10).

#3 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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102 See footnote 13. 30 Morris v. McComb, 332 U.S. 422.

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13(b) (1) of the Fair Labor Standards Act.25 Such employees are not within the section
The Commission has also specifically stated that 13(b) (1) exemption.29
its jurisdiction under section 204 of the Motor

(13 F.R. 2346, Apr. 30, 1948, as amended at 28 F.R.
Carrier Act relates to safety of operation of motor 11686, Nov. 1, 1963)
vehicles only, and to the safety of operation of
such vehicles "on the highways of the country, and

SECTION 782.3 DRIVERS that alone.” 26 Accordingly, the exemption does

(a) A "driver," as defined by the Interstate not extend to employees merely because they en

Commerce Commission,30 is an individual who gage in activities affecting the safety of operation

drives a motor vehicle in transportation which is

,

within the meaning of the Motor Carrier Act, in of motor vehicles operated on private premises. interstate or foreign commerce. This definition Nor does it extend to employees engaged solely in does not require that the individual be engaged in such activities as operating freight and passenger such work at all times; the Commission has recogelevators in the carriers' terminals or moving nized that even full-duty drivers devote some of freight or baggage therein or on the docks or their working time to activities other than such streets by hand trucks, which activities have no driving. “Drivers,” as defined by the Commisconnection with the actual operation of motor

sion, include, for example, such partial-duty drivvehicles.27 Certain classes of employees who are

ers as the following, who drive in interstate or not within the Commission's definitions of drivers, foreign commerce as part of a job in which they drivers' helpers, loaders, and mechanics are men

are required also to engage in other types of drivtioned in sections 782.3–782.6, inclusive. Others ing or nondriving work. Individuals whose who do not come within these definitions include driving duties are concerned with transportation, the following, whose duties are considered by the

some of which is in intrastate commerce and some Commission to affect safety of operation, if at all,

of which is in interstate or foreign commerce only indirectly; stenographers (including those

within the meaning of the Motor Carrier Act; who write letters relating to safety or prepare

individuals who ride on motor vehicles engaged accident reports); clerks of all classes (including in transportation in interstate or foreign comrate clerks, billing clerks, clerks engaged in pre

merce and act as assistant or relief drivers of the paring schedules, and filing clerks in charge of

vehicles in addition to helping with loading, unfiling accident reports, hours-of-service records, loading, and similar work; drivers of chartered inspection reports and similar documents); fore

buses or of farm trucks who have many duties men, warehousemen, superintendents, salesmen,

unrelated to driving or safety of operation of their and employees acting in an executive capacity.28

vehicles in interstate transportation on the high

ways; and so-called "driver-salesmen” who devote 2 Walling V. Comet Carriers, 151 F.(2d) 107 (C.C.A. 2); much of their time to selling goods rather than to Hansen v. Salinas Valley Ice Co. (Cal. App.) 144 P.(20) 896 ;

activities affecting such safety of operation. 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.

29 Overnight Motor Transp. Co. v. Missel, 316 U.S. 572 (rate Brinks, Inc., 54 F. Supp. 676 (S.D. N.Y.); Walling v. Villaume clerk who performed incidental duties as cashier and dispatcher); Box & Lumber Co., 58 F. Supp. 150 (D. Minn.) ; Hager v. Brinks,

Levinson v. Spector Motor Service, 330 U.S. 649; Porter v.

Poindexter, 158 F.(20) 759 (C.A. 10) (checker of freight and bill Inc., 11 Labor Cases, par. 63,296 (N.D. III.), 6 W.H. Cases 262;

collector); Potashnik Local Truck System v. Archer (Ark. Sup. Walling v. DeSoto Creamery & Produce Co., 51 F. Supp. 938 Ct.), 179 S.W.(20) 696 (night manager who did clerical work (D. Minn.); Dallum v. Farmers Cooperative Trucking Assn.,

on way bills, filed day's accumulation of bills and records, billed

out local accumulation of shipments, checked mileage on trucks 46 F. Supp. 785 (D. Minn.) ; McLendon v. Bewley Mills (N.D.

and made written reports, acted as night dispatcher, answered Tex.), 3 Labor Cases, par, 60,247, 1 W.H. Cases 934 ; Gibson telephone calls, etc.).

20 49 C.F.R., 1943 Cum. Supp., Part 191, sec, 191.1 (b) Ex parte v. Glasgow (Tenn. Sup. Ct.), 157 $.W. (20) 814; cf. Morris v.

No. MC-2, 3 M.C.C. 665 ; Ex parte No. MC-3, 23 M.C.C. 1; McComb, 332 U.S. 422. See also sec. 782.1, footnotes 9-11, and

Ex parte No. MC-4, 1 M.C.C. 1. secs. 782.7-782.8.

31 As to what is considered transportation in interstate or 28 Ex parte Nos. MC-2 and MC-3, 28 M.C.C. 125, 129. See also foreign commerce within the meaning of the Motor Carrier Act,

see sec. 782.7. United States v. American Trucking Assns., 310 U.S. 534, 548.

32 Levinson v. Spector Motor Service, 330 U.S. 649; Morris v: 27 Gordon's Transports r. Walling, 162 F.(20) 203 (C.A. 6), McComb, 332 U.S. 422 ; Richardson v. James Gibbons Co., 132

F.(20) 627 (C.A. 4), affirmed 319 U.S. 44; Gavril v. Kraft certiorarı denied 322 U.S. 774 ; Walling v. Comet Carriers, 57

Cheese Co., 42 F. Supp. 702 (N.D. m.); Walling v. Craig, 53, F. Supp. 1018, affirmed, 151 F.(2d) 107 (C.A. 2), certiorari dis

Supp. 479 (D. Minn.) Vannoy v. Swift' & Co. (Mo. s. ct.), 201 missed 328 U.S. 819; Gibson v. Glasgow (Tenn. Sup. Ct.), 157 8.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. 8.W. (2d) 814 ; Ex parte Nos. MC-2 and MC-3, 28 M.C.C. 125,

125; Ex parte No. MC-4, 1 M.C.C. 1. Cf. Colbeck v. Dairyland 128. See also Pyramid Motor Freight Corp. v. Ispass, 330 U.S.

Creamery Co. (S.D. Sup. Ct.), 17 N.W.(20) 262, in which the 695; Levinson v. Spector Motor Serv., 330 U.S. 649.

court held that the exemption did not apply to a refrigeration

mechanic by reason solely of the fact that he crossed State lines 28 Ex parte Nos. MC-2 and MC-3, 28 M.C.C. 125; Ex parte No.

in a truck in which he transported himself to and from the MC-28, 13 M.C.C. 481. But see secs. 782.5(b) and 782.6(b) as

various places at which he serviced equipment belonging to his

employer. to certain foremen and superlatendents.

transpo within if he is

such tra

transpor

that 50

trailers ng are incident

32

a Lerine
Rlebardson
firmed 31
No. NC-29
VC-3, 28
Ex parte
1: Ex part

W See Es
M.C.C.
VC-28, 13

(S. 648; Morris 1.

Motor

* Southl. Spector MC (422 CA. 6). See foo * See sec 481. Ct. 1.1.(20) 2 beste sites, a Mrigeratio

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