ways; " 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

[Paragraph (a) amended, 22 F. R. 2662, Apr. 17, 1957] SECTION 782.2 REQUIREMENTS FOR EXEMPTION IN GENERAL

(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 Com

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 1, 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 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 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

mission'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 meaning 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 1 employed by such carriers, and that no other classes of employees employed by

15

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 shell fish), or agricultural commodities (not including manufactured products thereof), if such motor vehicles are not used in carrying any other property, or passengers, for compensation; (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 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 person 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."

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 discussion of special classes of carriers in sec. 782.8. And see paragraph (d) of this section.

4 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 Ú. S. 820.

The activities described in the text are frequently referred to herein, for purposes of brevity, as activities directly affecting "safety of operation," or What such activities are is explained in paragraph (d) of this as safety-affecting activities. section and in following sections. As to the meaning of "transportation in interstate or 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.

ers, 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. 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 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 veicles.27 Certain classes of

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).

2Pyramid 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.

25 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. (2d) 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 secs. 782.7-782.8.

Ex parte Nos. MC-2 and MC-3. 28 M. C. C. 125, 129. See also United States v. American Trucking Assns., 310 U. S. 534, 548.

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. See also Pyramid Motor Freight Corp. v. Ispass, 330 U. S. 695; Levinson v. Spector Motor Serv., 330 U. S. 649.

125, 128.

employees who are not within the Commission's definitions of drivers, drivers' helpers, loaders, and mechanics are mentioned in sections 782.3782.6, 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 Such employees are not within the section 13 (b) (1) exemption.29

SECTION 782.3 DRIVERS

(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 com

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.

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.

a1 As to what is considered transportation in interstate or foreign commerce within the meaning of the Motor Carrier Act, see sec 782.7.

merce 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

(b) The work of an employee who is a fullduty or partial-duty "driver," as the term "driver" has been defined by the Commission, directly affects "safety of operation" within the meaning of section 204 of the Motor Carrier Act whenever he drives a motor vehicle in interstate or foreign commerce within the meaning of the act.33 The Commission has power to establish, and has established, qualifications and maximum hours of service for such drivers employed by common and contract carriers of passengers or property and by private carriers of property pursuant to section 204 of the Motor Carrier Act.34 In accordance with principles previously stated,35 such drivers to whom this regulatory power extends are, accordingly, employees exempted from the overtime requirements of the Fair Labor Standards Act by section 13 (b) (1).36 This does not mean that an employee of a carrier who drives a motor vehicle is exempted as a "driver" by virtue of that fact alone. He is not exempt if his job never involves transportation in interstate or foreign commerce within the meaning of the Motor Carrier Act,37 or

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 Cf. Colbeck v. M. C. C. 125; Ex parte No. MC-4, 1 M. C. C. 1. 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 emploer.

33 Levinson v. Spector Motor Service, 330 U. S. 649, citing Richardson v. James Gibbons Co., 132 F. (2d) 627 (C. A. 4), affirmed 319 U. S. 44; Morris v. McComb, 332 U. S. 422; Ex parte No. MC-28, 13 M. C. C. 481, 482, 488; Ex parte Nos. MC-2 and MC-3, 28 M. C. C. 125, 139 (Conclusion of Law No. 2). See also 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.

34 See Ex parte No. MC-4, 1. M. C. C. 1; Ex parte No. MC-2, 3 M. C. C. 665; Ex parte No. MC-3, 23 M. C. C. 1; Ex parte No. MC-28, 13 M. C. C. 481; Levinson v. Spector Motor Service, 330 U. S. 649; Southland Gasoline Co. v. Bayley, 319 U. S. 44; Morris v. McComb, 332 U. S. 422; Safety Regulations (Carriers by Motor Vehicle), 49 CFR 1943 Cum. Supp, Parts 190-193.

35 See sec. 782.2.

36 Southland Gasoline Co. v. Bayley, 319 U. S. 44; Levinson v. Spector Motor Service, 330 U. S. 649; Morris v. McComb, 332 U. S. 422; Rogers Cartage Co. v. Reynolds, 166 F. (2d) 317 (C. A. 6).

See footnote 25, above, and secs. 782.7, 782.8.

if he is employed by a private carrier and the only such transportation called for by his job is not transportation of property.38 It has been held that so-called "hostlers" who "spot" trucks and trailers at a terminal dock for loading and unloading are not exempt as drivers merely because as an incident of such duties they drive the trucks and tractors in and about the premises of the trucking terminal.39

SECTION 782.4 DRIVERS' HELPERS

(a) A driver's "helper," as defined by the Interstate Commerce Commission,10 is an employee other than a driver, who is required to ride on a motor vehicle when it is being operated in interstate or foreign commerce within the meaning of the Motor Carrier Act.41 The Commission has classified all such employees (including armed guards on armored trucks and conductorettes on buses) as "helpers" with respect to whom it has power to establish qualifications and maximum hours of service because of their engagement in some or all of the following activities which, in the Commission's opinion, directly affect the safety of operation of such motor vehicles in interstate or foreign commerce: assist in loading the vehicles; 3 dismount when the vehicle approaches a railroad crossing and flag the driver across the tracks, and perform a similar duty when the vehicle is being turned around on a busy highway or when it is entering or emerging from a driveway; in case of a breakdown, (1) place the flags, flares,

43

42

46

45

and fuses as required by the safety regulations, (2) go for assistance while the driver protects the vehicle on the highway, or vice versa, or (3) assist the driver in changing tires or making minor repairs; and assist in putting on or removing chains." In accordance with principles previously stated, the section 13 (b) (1) exemption applies to employees who are, under the Commission's definitions, engaged in such activities as full-duty or partialduty "helpers" on motor vehicles being operated in transportation in interstate or foreign commerce within the meaning of the Motor Carrier Act.16 The exemption has been held inapplicable to so-called helpers who ride on motor vehicles but do not engage in any of the activities of "helpers" which the Commission has found to affect directly the safety of operation of such vehicles in interstate or foreign commerce. It should be noted also that an employee, to be exempted as a driver's "helper" under the Commission's definitions, must be "required" as part of his job to ride on a motor vehicle when it is being operated in interstate or foreign commerce; an employee of a motor carrier is not exempted as a "helper" when he rides on such a vehicle, not as a matter of fixed duty, but merely as a convenient means of getting himself to, from, or between places where he performs his assigned work.48

SECTION 782.5 LOADERS

(a) A "loader," as defined by the Interstate Commerce Commission," is an employee of a

44 An employee may be a "helper" under the Commission's definition even though such safety-affecting activities constitute but a minor part of his job. Thus, although the primary duty of armed guards on armored trucks is to protect the valuables in the case of attempted robberies, the Commission has determined that they should be classified as "helpers" where they ride on such trucks being operated in interstate or foreign commerce, because, in the case of an accident or other emergency and in other respects, they act in a capacity somewhat similar to that of the helpers described in the text. Similarly, conductorettes on buses whose primary duties are to see to the comfort of the passengers are classified by the Commission as "helpers" where such buses are being operated in interstate or foreign commerce, because in instances when accidents occur, they help the driver in obtaining aid and protect the vehicle from oncoming traffic.

45 See sec. 782.2.

46 Ispass v. Pyramid Motor Freight Corp., 152 F. (2d) 619 (C. A. 2); Walling v. McGinley Co. (E. D. Tenn.), 12 Labor Cases, par. 63, 731, 6 W. H. Cases 916. See also Levinson v. Spector Motor Service, 330 U. S. 649; Pyramid Motor Freight Corp. v. Ispass, 330 U. S. 695; Dallum v. Farmers Coop. Trucking Assn., 46 F. Supp. 785 (D. Minn.).

47 Walling v. Gordon's Transports (W. D. Tenn.), 10 Labor Cases, par. 62,934, 6 W. H. Cases 831, affirmed 162 F. (2d) 203 (C. A. 6), certiorari denied, 332 U. S. 774 (helpers on city "pick-up and delivery trucks" where it was not shown that the loading in any manner affected safety of operation and the helpers' activities were "in no manner similar" to those of a driver's helper in over-the-road operation).

48 See Pyramid Motor Freight Corp. v. Ispass, 330 U. S. 695, modifying, on other grounds, 152 F. (2d) 619 (C. A. 2). 139.

Ex parte Nos. MC-2 and MC-3, 28 M. C. C. 125, 133, 134,

carrier subject to section 204 of the Motor Carrier Act (other than a driver or driver's helper as defined in sections 782.3 and 782.4) whose duties include, among other things, the proper loading of his employer's motor vehicles so that they may be safely operated on the highways of the country. A "loader" may be called by another name, such as "dockman," "stacker," or "helper," and his duties will usually also include unloading and the transfer of freight between the vehicles and the warehouse, but he engages, as a "loader," in work directly affecting "safety of operation" so long as he has responsibility, when such motor vehicles are being loaded, for exercising judgment and discretion in planning and building a balanced load or in placing, distributing, or securing the pieces of freight in such a manner that the safe operation of the vehicles on the highways in interstate or foreign commerce will not be jeopardized.50

51

(b) The section 13 (b) (1) exemption applies, in accordance with principles previously stated, to an employee whose job involves activities consisting wholly or in part of doing, or immediately directing, a class of work thus defined by the Commission (1) as that of a loader and (2) as directly affecting the safety of operation of motor vehicles in interstate or foreign commerce within the meaning of the Motor Carrier Act, since such an employee is an employee with respect to whom the Commission has power to establish qualifications and maximum hours of service.52 Where a checker, foreman, or other supervisor plans and immediately directs the proper loading of a motor vehicle as described above, he may come within the exemption as a partial-duty loader.53

50 Levinson v. Spector Motor Service, 330 U. S. 649; Pyramid Motor Freight Corp. v. Ispass, 330 U. S. 695; Walling v. Gordon's Transports (W. D. Tenn.), 10 Labor Cases, par. 62,934, affirmed 162 F. (2d) 203 (C. A. 6), certiorari denied 332 Ú. S. 774; Walling v. Huber & Huber Motor Express, 67 F. Supp. 855; Ex parte Nos. MC-2 and MC-3, 28 M. C. C. 125, 133, 134. 51 See sec. 782.2.

52 Levinson v. Spector Motor Service, 330 U. S. 649; Pyramid Motor Freight Corp. v. Ispass, 330 U. S. 695; Walling V. Silver Fleet Motor Express, 67 F. Supp. 846; Walling V. Huber & Huber Motor Express, 67 F. Supp. 855; Walling v. Gordon's Transports (W. D. Tenn.), 10 Labor Cases, par. 62,934, affirmed 162 F. (2d) 203 (C. A. 6), certiorari denied 332 U. S. 774; Tinerella v. Des Moines Transp. Co., 41 F. Supp. 798.

53 Levinson v. Spector Motor Service, 330 U. S. 649; Walling v. Gordon's Transports (W. D. Tenn.), 10 Labor Cases, par. 62,934, affirmed 162 F. (2d) 203 (C. A. 6), certiorari denied 332 U. S. 774; Walling v. Huber & Huber Motor Express, 67 F. Supp. 855; Walling v. Silver Fleet Motor Express, 67 F. Supp. 846; Crean v. Moran Transportation Lines, 57 F. Supp. 212 (W. D. N. Y.) (see also 9 Labor Cases, par. 62,416); Walling v. Commercial Motor Freight (S. D. Ind.), 11 Labor Cases, par. 63,451; Hogla v. Porter (E. D. Okla.), 11 Labor Cases, par. 63,389, 6 W. H. Cases 608.