70

safety of operation of the motor vehicles on the highways. The same has been held true of employees whose activities are confined to construction work, manufacture or rebuilding of truck, bus, or trailer bodies, and other duties which are concerned with the safe carriage of the contents of the vehicle rather than directly with the safety of operation on the public highways of the motor vehicle itself."1

(2) Similarly, the exemption has been held inapplicable to mechanics repairing and rebuilding parts, batteries, and tires removed from vehicles where a direct causal connection between their work and the safe operation of motor vehicles on the highways is lacking because they do no actual work on the vehicles themselves and entirely dif ferent employees have the exclusive responsibility for determining whether the products of their work are suitable for use, and for the correct installation of such parts, on the vehicles.72 Mechanical work on motor vehicles of a carrier which is performed in order to make the vehicles con form to technical legal requirements rather than to prevent accidents on the highways has not been regarded by the courts as work directly affecting "safety of operation.' 99 73 And it is clear that no mechanical work on motor vehicles can be considered to affect safety of operation of such vehicles in interstate or foreign commerce if the vehicles are never in fact used in transportation in such commerce on the public highways."4

[13 F.R. 2346, Apr. 30, 1948, as amended at 28 F.R. 11687, Nov. 1, 1963]

70 Walling v. Silver Fleet Motor Express, 67 F. Supp. 846 (painter not exempt even though he used colors and safety markings designed to make it possible to see vehicles at great distances); Anuchick v. Transamerican Freight Lines, 46 F. Supp. 861 McDuffie v. Hayes Freight Lines, 71 F. Supp. 755. See also Morris v. McComb, 332 U.S. 422.

The distinction between direct and indirect effects on safety of operation is exemplified by the Commission's comments in rejecting the contention, in Ex parte Nos. MC-2 and MC-3 28 M.C.C. 125, 135, that the activities of dispatchers directly affect safety of operation. that if a dispatcher by an error in judgment assigns a vehicle of insufficient size and weight-carrying capacity to transport the load, or calls a driver to duty who is sick, fatigued, or otherwise not in condition to operate the vehicle, or requires or permits the vehicle to depart when the roads are icy and the country to be traversed is hilly, an accident may result. While this may be true, it is clear that such errors in judgment are not the proximate causes of such accidents, and that the dispatchers engage in no activities which directly affect the safety of operation of motor vehicles in interstate or foreign commerce.' (Emphasis supplied.)

The Commission stated: "It is contended

"Anuchick v. Transamerican Freight Lines, 46, F. Supp. 861; Walling v. Silver Fleet Motor Express, 67 F. Supp. 846; McDuffie v. Hayes Freight Lines, 71 F. Supp. 755; Walling y. Burlington Transp. Co. (D. Nebr.), 9 Labor Cases, par. 62,576. Compare Colbeck v. Dairyland Creamery Co. (S.D. Sup. Ct.), 17 N.W. (2d) 262 with Ex parte No. MC-40 (Sub. No. 2), S8 M.C.C. 710. 2 Keeling v. Huber & Huber Motor Express, 57 F. Supp. 617; Walling v. Huber & Huber Motor Express, 67 F. Supp. 855.

73 Kentucky Transport Co. v. Drake (Ky. Ct. App.), 182 S.W.(2d) 960; Anuchick v. Transamerican Freight Lines, 46 F. Supp. 861.

Baker v. Sharpless Hendler Ice Cream Co. (E.D. Pa.), 10 Labor Cases, par. 62,956.

SECTION 782.7 INTERSTATE COMMERCE REQUIREMENTS OF EXEMPTION

(a) As explained in preceding sections of this part, section 13 (b) (1) of the Fair Labor Standards Act does not exempt an employee of a carrier from the act's overtime provisions unless it appears, among other things, that his activities as a driver, driver's helper, loader, or mechanic directly affect the safety of operation of motor vehicles in transportation in interstate or foreign commerce within the meaning of the Motor Carrier Act. What constitutes such transportation in interstate or foreign commerce, sufficient to bring such an employee within the regulatory power of the Interstate Commerce Commission under section 204 of that act, is determined by definitions contained in the Motor Carrier Act itself. These definitions are, however, not identical with the definitions in the Fair Labor Standards Act which determine whether an employee is within the general coverage of the wage and hours provisions as an employee "engaged in (interstate or foreign) commerce." For this reason, the interstate commerce requirements of the section 13 (b) (1) exemption are not necessarily met by establishing that an employee is "engaged in commerce" within the meaning of the Fair Labor Standards Act when performing activities as a driver, driver's helper, loader, or mechanic, where these activities are sufficient in other respects to bring him within. the exemption.76 To illustrate, employees of construction contractors are, within the meaning of the Fair Labor Standards Act, engaged in commerce where they operate or repair motor vehicles used in the maintenance, repair, or reconstruction of instrumentalities of interstate commerce (for example, highways over which goods and persons regularly move in interstate commerce)." Employees so engaged are not, however, brought, within the exemption merely by reason of that fact. In

99 75

75 Compare the definitions from the Motor Carrier Act, quoted in footnotes 7-10, with the following definitions from section 3 of the Fair Labor Standards Act as amended:

(b) Commerce' means trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof.

"(c) 'State' means any State of the United States or the District of Columbia or any Territory or possession of the United States."

16 Hager v. Brinks, Inc. (N.D. Ill.), 11 Labor Cases, par. 63,296, 6 W.H. Cases 262; Earle v. Brinks, Inc., 54 F. Supp. 676 (S.D. N.Y.); Thompson v. Daugherty, 40 F. Supp. 279 (D. Md.). See also, Walling v. Villaume Box & Lbr. Co., 58 F. Supp. 150 (D. Minn.). And see in this connection paragraph (b) of this section and sec. 782.8.

77 Walling v. Craig, 53 F. Supp. 479 (D. Minn.). See also Engbretson v. E. J. Albrecht Co.. 150 F. (2d) 602 (C.A. 7): Overstreet v. North Shore Corp., 318 U.S. 125; Pedersen v. J. F. Fitzgerald Constr. Co., 318 U.S. 740, 742.

order for the exemption to apply, their activities, so far as interstate commerce is concerned, must relate directly to the transportation of materials moving in interstate or foreign commerce within the meanings of the Motor Carrier Act.78

(b) (1) Highway transportation by motor vehicle from one State to another, in the course of which the vehicles cross the State line, clearly constitutes interstate commerce under both acts. Employees of a carrier so engaged, whose duties directly affect the safety of operation of such vehicles, are within the exemption in accordance with principles previously stated. The result is no different where the vehicles do not actually cross State lines but operate solely within a single State, if what is being transported is actually moving in interstate commerce within the meaning of both acts; the fact that other carriers transport it out of or into the State is not material.80 Transportation within a single State is in interstate commerce within the meaning of the Fair Labor Standards Act where it forms a part of a "practical continuity of movement” across State lines from the point of origin to the point of destination.81 Since the interstate commerce regulated under the two acts is not identical,82 such transportation may or may not be considered also a movement in interstate commerce within the meaning of the Motor Carrier Act. Decisions of the Interstate Commerce Commission seemingly have limited the scope of the Motor Carrier Act more narrowly than the courts have construed the Fair Labor Standards Act.83 It is deemed neces

78 Asphalt distributor-operators, although not exempt by reason of their work in applying the asphalt to the highways, are within the exemption where they transport to the road site asphalt moving in interstate commerce. See Richardson v. James Gibbons Co., 132 F.(2d) 627 (C.A. 4), affirmed 319 U.S. 44 (and see reference to this case in footnote 18 of Levinson v. Spector Motor Service, 330 U.S. 649); Walling v. Craig, 53 F. Supp. 479 (D. Minn.),

79 Southland Gasoline Co. v. Bayley, 319 U.S. 44; Plunkett v. Abraham Bros., 129 F. (2d) 419 (Č.A. 6); Vannoy v. Swift & Co. (Mo. Sup. Ct.), 201 S.W. (2d) 350; Nelson v. Allison & Co. (E.D. Tenn.), 13 Labor Cases, par. 64,021; Reynolds v. Rogers Cartage Co. (W.D. Ky.), 13 Labor Cases, par. 63,978, reversed on other grounds 166 F. (2d) 317 (C.A. 6); Walling v. McGinley Co. (E.D. Tenn.), 12 Labor Cases, par. 63,731; Walling v. McGinley Co. (E.D. Tenn.), 12 Labor Cases, par. 63,731; Walling V. A. H. Phillips, Inc., 50 F. Supp. 749, affirmed (C.A. 1) 144 F. (2d) 102, 324 U.S. 490. See secs. 782.2-782.8.

So Morris v. McComb, 68 S. Ct. 131; Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695; Walling v. Silver Bros. Co., 136 F. (2d) 168 (C.A. 1); Walling v. Mutual Wholesale Food & Supply Co., 141 F. (2d) 331 (C.A. 8); Dallum v. Farmers Cooperative Trucking Assn., 46 F. Supp. 785 (D. Minn.); Gavril v. Kraft Cheese Co., 42 F. Supp. 702 (N.D. Ill.); Keegan v. Ruppert (S.D. N.Y.), 7 Labor Cases, par. 61,726, 3 W.H. Cases 412; Baker v. Sharpless Hendler Ice Cream Co. (E.D. Pa.), 10 Labor Cases, par. 62,956, 5 W.H. Cases 926.

81 Walling v. Jacksonville Paper Co., 317 U.S. 564; Walling v. Mutual Wholesale Food & Supply Co., 141 F. (2d) 331 (C.A. 8); Walling v. American Stores Co., 133 F. (2d) 840 (C.A. 3); Baker v. Sharpless Hendler Ice Cream Co. (E.D. Pa.), 10 Labor Cases, par. 62,956, 5 W.H. Cases 926.

82 See par. (a) of this section.

83 See footnote 84 and sec. 782.8.

sary, however, as an enforcement policy only and without prejudice to any rights of employees under section 16(b) of the act, to assume that such a movement in interstate commerce under the Fair Labor Standards Act is also a movement in interstate commerce under the Motor Carrier Act, except in those situations where the Interstate Commerce Commission or the courts hold otherwise.84 Under this enforcement policy it will ordinarily be assumed by the Administrator that the interstate commerce requirements of the section 13(b) (1) exemption are satisfied where it appears that a motor carrier employee is engaged as a driver, driver's helper, loader, or mechanic in transportation by motor vehicle which, although confined to a single State, is a part of an interstate movement of the goods or persons being thus transported so as to constitute interstate commerce within the meaning of the Fair Labor Standards Act.85 Where, however, the Interstate Commerce Commission holds that transportation of a particular character within a single State is not in interstate commerce as defined in the Motor Carrier Act (as it has done with respect to certain transportation of petroleum products from a terminal within a State to other points within the same State-see subparagraph (2) of this paragraph), there is no basis for an exemption under section 13(b) (1), even though the facts may establish a "practical continuity of movement" from out-ofState sources through such in-State trip so as to make the trip one in interstate commerce under the Fair Labor Standards Act. Of course, engagement in local transportation which is entirely in intrastate commerce provides no basis for exempting a motor carrier employee.s

86

(2) The Interstate Commerce Commission has held that transportation confined to points in a single State from a storage terminal of commodities which have had a prior movement by rail, pipeline, motor or water from an origin in a different State is not in interstate or foreign commerce within the meaning of Part II of the Interstate Commerce Act if the shipper has no

84 See section 782.8(a); and compare Beggs v. Kroger Co., 167 F. (2d) 700, with the Commission's holding in Ex parte No. MC-48, 71 M.C.C. 17, discussed in paragraph (b) (2) of this section.

85 See, in this connection, the cases cited in footnote 80. This policy does not extend to drivers, drivers' helpers, loaders, or mechanics whose transportation activities are "in commerce" or "in the production of goods for commerce" within the meaning of the act but are not a part of an interstate movement of the goods or persons carried.

8 See cases cited in footnote 25. See also paragraph (b) of

this section.

fixed and persisting transportation intent beyond the terminal storage point at the time of shipment. See Ex parte No. MC-48 (71 M.C.C. 17, 29). The Commission has specifically found that there is no fixed and persisting intent where (i) at the time of shipment there is no specific order being filled for a specific quantity of a given product to be moved through to a specific destination beyond the terminal storage, and (ii) the terminal storage is a distribution point or local marketing facility from which specific amounts of the product are sold or allocated, and (iii) transportation in the furtherance of this distribution within the single State is specifically arranged only after sale or allocation from storage. While Ex parte No. MC-48 deals with petroleum and petroleum products, the determination indicates that the same reasoning applies to general commodities moving interstate into a warehouse for distribution (71 M.C.C. at 27). Accordingly, employees engaged in such transportation are not subject to the Motor Carrier Act and therefore not within the section 13 (b) (1) exemption. They may, however, be engaged in commerce within the meaning of the Fair Labor Standards Act. (See in this connection, the cases cited in footnote 81; also, Mid-Continent Petroleum Corp. v. Keen, 157 F. 2d 310 (C.A. 8); DeLoach v. Crowley's Inc., 128 F. 2d 378 (C.A. 5); Walling v. Jacksonville Paper Co., 69 F. Supp. 599, affirmed 167 F. 2d 448, reversed on another point in 336 U.S. 187; and Standard Oil Co. v. Trade Commission, 340 U.S. 231, 238).

(c) The wage and hours provisions of the Fair Labor Standards Act are applicable not only to employees engaged in commerce, as defined in the act, but also to employees engaged in the production of goods for such commerce. Employees engaged in the "production" of goods are defined by the act as including those engaged in "handling, transporting, or in any other manner working on such goods, or in any closely related process or occupation directly essential to the production thereof, in any State." 87 Where transportation of persons or property by motor vehicle between places within a State falls within this definition,

Fair Labor Standards Act, sec. 3(j), 29 U.S.C., sec. 203 (j), as amended by the Fair Labor Standards Amendments of 1949, 63 Stat. 910. See also the Division's Interpretative Bulletin, part 776 of this chapter on general coverage of the wage and hours provisions of the act.

This applies to employees of common, contract, and private carriers.

88

and is not transportation in interstate or foreign commerce within the meaning of the Motor Carrier Act because movement from points out of the State has ended or because movement to points out of the State has not yet begun, the employees engaged in connection with such transportation are covered by the wage and hours provisions of the Fair Labor Standards Act and are not subject to the jurisdiction of the Interstate Commerce Commission. Examples are: (1) Drivers transporting goods in and about a plant producing goods for commerce; (2) chauffeurs or drivers of company cars or buses transporting officers or employees from place to place in the course of their employment in an establishment which produces goods for commerce; (3) drivers who transport goods from a producer's plant to the plant of a processor, who, in turn, sells goods in interstate commerce, the first producer's goods being a part or ingredient of the second producer's goods; (4) drivers transporting goods between a factory and the plant of an independent contractor who performs operations on the goods, after which they are returned to the factory which further processes the goods for commerce; and (5) drivers transporting goods such as machinery or tools and dies, for example, to be used or consumed in the production of other goods for commerce. These and other employees engaged in connection with the transportation within a State of persons or property by motor vehicle who are subject to the Fair Labor Standards Act because engaged in the production of goods for commerce and who are not subject to the Motor Carrier Act because not engaged in interstate or foreign commerce within the meaning of that act, are not within the exemption provided by section 13 (b) (1).89

[13 F.R. 2346, Apr. 30, 1948, as amended at 16 F.R. 4272, May 9, 1951, 24 F.R. 8019, Oct. 6, 1959, 28 F.R. 11687, Nov. 1, 1963]

89 Walling v. Comet Carriers, 151 F. (2d) 107 (C.A. 2); Griffin Cartage Co. v. Walling, 153 F. (2d) 587 (C.A. 6); Walling v. Morris, 155 F. (2d) 832 (C.A. 6), reversed on other grounds in Morris v. McComb, 332 U.S. 422; West Kentucky Coal Co. v. Walling, 153 F. (2d) 582 (C.A. 6); Hamlet Ice Co. v. Fleming, 127 F. (2d) 165 (C.A. 4); Atlantic Co. v. Walling, 131 F. (2d) 518 (C.A. 5); Chapman v. Home Ice Co., 136 F. (2d) 353 (C.A. 6); Walling v. Griffin Cartage Co., 62 F. Supp. 396 (E.D. Mich.), affirmed 153 F. (2d) 587 (C.A. 6); Dallum v. Farmers Coop. Trucking Assn., 46 F. Supp. 785 (D. Minn.); Walling v. Villaume Box & Lbr. Co., 58 F. Supp. 150 (D. Minn.); Walling v. DeSoto Creamery & Produce Co., 51 F. Supp. 938 (D. Minn.); Reynolds v. Rogers Cartage Co., 71 F. Supp. 870 (W.D. Ky.), reversed on other grounds 166 F. (2d) 317 (C.A. 6), Hansen v. Salinas Valley Ice Co. (Cal. App.), 144 P.(2d) 896.

SECTION 782.8 SPECIAL CLASSES OF CARRIERS

(a) The Interstate Commerce Commission has consistently maintained that transportation within a State of consumable goods (such as food, coal, and ice) to railroads, docks, etc., for use on trains and steamships is not such transportation as is subject to its jurisdiction." The intrastate delivery of chandleries, including cordage, canvas, repair parts, wire rope, etc., to ocean-going vessels for use and consumption aboard such vessels which move in interstate or foreign commerce falls within this category. Employees of carriers so engaged are considered to be engaged in commerce, as that term is used in the Fair Labor Standards Act. Since the Commission has disclaimed jurisdiction over this type of operation,"2 it is the Divisions' opinion that drivers, drivers' helpers, loaders, and mechanics employed by companies engaged in such activities are covered by the wage and hours provisions of the Fair Labor Standards Act, and are not within the exemption contained in section 13 (b) (1).93

91

(b) The Interstate Commerce Commission has disclaimed jurisdiction under the Motor Carrier Act of employees engaged in the transportation of mail under contract with the Post Office Department in vehicles used exclusively for that purpose.94 It would thus appear that such employees of mail contractors are not within the exemption provided by section 13(b)(1) of the Fair Labor Standards Act. Employees of mail contractors are not employees of the United States within the meaning of section 3 (d) of the Fair Labor Standards Act.95 Since they are considered "engaged in commerce" within the meaning of the act, it is the position of the Divisions that they are entitled to overtime compensation under section 7 of the Fair Labor Standards Act.96

90 New Pittsburgh Coal Co. v. Hockying Valley Ry. Co., 24 I.C.C. 244; Corona Coal Co. v. Secretary of War, 69 I.C.C. 389; Bunker Coal from Alabama to Gulf Ports, 227 I.C.C. 485.

91 These employees may also be engaged in the "production of goods for commerce" within the meaning of section 3(j) of the See cases cited in footnotes 89 and Fair Labor Standards Act. 93, and see Part 776 of this chapter.

92 See, in this connection, section 782.7(b).

93 See Hansen v. Salinas Valley Ice Co. (Cal. App.), 144 P. (2d) 896.

4 See 3 M.C.C. 694, 697.

95 Repsher v. Streepy (E.D. Pa.), 7 Wage Hour Cases 769, 14 Labor Cases, par. 64,364; Fleming v. Gregory, 36 F. Supp. 776; Thompson v. Daugherty, 40 F. Supp. 279; Magann v. Long's Baggage Transfer Co., 39 F. Supp. 742.

96 Repsher v. Streepy (E.D. Pa.), 7 Wage Hour Cases 769, 14 Labor Cases, par. 64,364; Thompson v. Daugherty, 40 F. Supp. But see Magann v. Long's Baggage Transfer Co., 39 F. Supp. 742, contra.

279.

(c) Section 202 (c) (2) of the Motor Carrier Act, as amended on May 16, 1942, makes section 204 of that act "relative to qualifications and maximum hours of service of employees and safety of operations and equipment," applicable "to transportation by motor vehicle by any person (whether as agent or under a contractual arrangement) for a * * * railroad *** express company *** motor carrier *** water carrier * * * or a freight forwarder * * * in the performance within terminal areas of transfer, collection, or delivery service." Thus, drivers, drivers' helpers, loaders, and mechanics of a motor carrier performing pick-up and delivery service for a railroad, express company, or water carrier are to be regarded as within the 13 (b) (1) exemption.97 The same is true of drivers, drivers' helpers, loaders, and mechanics employed directly by a railroad, a water carrier or a freight forwarder in pick-up and delivery service. Section 202 (c) (1) of the Motor Carrier Act, as amended on May 16, 1942, includes employees employed by railroads, water carriers, and freight forwarders, in transfer, collection, and delivery service in terminal areas by motor vehicles within the Interstate Commerce Commission's regulatory power under section 204 of the same act.98 Both before and after the amendments referred to, it has been the Divisions' position that the 13 (b) (1) exemption is applicable to drivers, drivers' helpers, loaders and mechanics employed in pick-up and delivery service to linehaul motor carrier depots or under contract with forwarding companies, since the Interstate Commerce Commission had determined that its regulatory power under section 204 of the Motor Carrier Act extended to such employees.

[13 F.R. 2346, Apr. 30, 1948, as amended at 16 F.R. 4273, May 9, 1951]

97 See Levinson v. Spector Motor Service, 330 U.S. 649 (footnote 10); cf. Cedarblade v. Parmelee Transp. Co. (C.A. 7), 166 F. (2d) 554, 14 Labor Cases, par. 64,340.

98 See Morris v. McComb, 332 U.S. 422 (footnote 14): Such employees of a carrier subject to Part I of the Interstate Commerce Act may come within the exemption from the overtime requirements provided by section 13(b)(2). Cf. Cedarblade v. Parmelee Transp. Co. (C.A. 7), 166 F. (2d) 554, 14 Labor Cases, par. 64,340. Thus, only employees of a railroad, water carrier, or freight forwarder outside of the scope of Part I of the Interstate Commerce Act and of the 13 (b) (2) exemption are affected by the above on and after the date of the amendment.

U.S. GOVERNMENT PRINTING OFFICE: 1964-0-714-980