54

(c) An employee is not exempt as a loader where his activities in connection with the loading of motor vehicles are confined to classes of work other than the kind of loading described above, which the Commission has determined directly affects "safety of operation." The mere handling of freight at a terminal, before or after loading, or even the placing of certain articles of freight on a motor carrier truck may form so trivial, casual, or occasional a part of an employee's activities, or his activities may relate only to such articles or to such limited handling of them, that his activities will not come within the kind of "loading" which is described by the Commission and which, in its opinion, directly affects "safety of operation." Thus, the following activities have been held to provide no basis for exemption: unloading; placing freight in convenient places in the terminal, checking bills of lading; wheeling or calling freight being loaded or unloaded; loading vehicles for trips which will not involve transportation in interstate or foreign commerce within the meaning of the Motor Carrier Act; and activities relating to the preservation of the freight as distinguished from the safety of operation of the motor vehicles carrying such freight on the highways.55 As is apparent from the Commission's opinion in Ex parte Nos. MC-2 and MC-3, 28 M. C. C. 125, red caps of bus companies engaged in loading baggage on buses are not loaders engaged in work directly affecting safety of operation of the vehicles. In the same opinion, the Commission expressly recognized that there is a class of freight which, because it is light in weight, probably could not be loaded in a manner which would adversely affect "safety of operation." In the case of coal trucks which are loaded from stock piles by the use of an electric bridge crane and a mechanical conveyor, it has been held that employees operating such a crane or conveyor in the loading process are not exempt as "loaders" under section 13 (b) (1).56 It seems

54 Pyramid Motor Freight Corp. v. Ispass, 330 U. S. 695; Levinson v. Spector Motor Service, 330 U. S. 649.

55 Pyramid Motor Freight Corp. v. Ispass, 330 U._S. 695; Levinson v. Spector Motor Service, 330 U. S. 649; Porter v. Poindexter, 158 F. (2d) 759 (C. A. 10); McKeown v. Southern Calif. Freight Forwarders, 49 F. Supp. 543; 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 Transp. Lines, 50 F. Supp. 107, 54 F. Supp. 765 (cf. 57 F. Supp. 212); Gibson v. Glasgow (Tenn. Sup. Ct.), 157 S. W. (2d) 814. See also Keeling v. Huber & Huber Motor Express, 57 F. Supp. 617.

6 Barrick v. South Chicago Coal & Dock Co. (N. D. Ill.), 8 Labor Cases, par. 62,242, affirmed 149 F. (2d) 960 (C. A. 7).

apparent from the foregoing discussion that an employee who has no responsibility for the proper loading of a motor vehicle is not within the exemption as a "loader" merely because he furnishes physical assistance when necessary in loading heavy pieces of freight, or because he deposits pieces of freight in the vehicle for someone else to distribute and secure in place, or even because he does the physical work of arranging pieces of freight in the vehicle where another employee tells him exactly what to do in each instance and he is given no share in the exercise of discretion as to the manner in which the loading is done." Such activities would not seem to constitute the kind of "loading" which directly affects the safety of operation of the loaded vehicle on the public highways, under the Commission's definitions.58

SECTION 782.6 MECHANICS

(a) A "mechanic," as defined by the Interstate Commerce Commission, is an employee who is employed by a carrier subject to the Commission's jurisdiction under section 204 of the Motor Carrier Act and whose duty it is to keep motor vehicles operated in interstate or foreign commerce by his employer in a good and safe working condition. The Commission has determined that the safety of operation of such motor vehicles on the highways is directly affected by those activities of mechanics, such as keeping the lights and brakes in a good and safe working condition, which prevent the vehicles from becoming potential hazards to highway safety and thus aid in the prevention of accidents.50 The courts have held that mechanics perform work of this character where they actually do inspection, adjustment, repair or maintenance work on the motor vehicles themselves (including trucks, tractors and trailers, and buses) and are, when so engaged, directly responsible for creating or maintaining physical conditions essential to the safety of the vehicles on the highways through the correction or prevention of defects which have a direct causal

57 See Pyramid Motor Freight Corp. v. Ispass, 330 U. S. 695; McKeown v. Southern Calif. Freight Forwarders, 49 F. Supp. 543: 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; Crean v. Moran Transportation Lines, 50 F. Supp. 107 (see also further opinion in 54 F. Supp. 765, and cf, the court's holding in 57 F. Supp. 212 with Walling v. Gordon's Transports, cited above). See also Levinson v. Spector Motor Service, 330 U. S. 649.

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

59 Ex parte Nos. MC-2 and MC-3, 28 M. C. C. 125, 132, 133. See also Morris v. McComb, 332 U. S. 422.

60

connection with the safe operation of the unit as a whole. The following activities performed by mechanics on motor vehicles operated in interstate or foreign commerce are illustrative of the specific kinds of activities which the courts, in applying the foregoing principles have regarded as directly affecting "safety of operation": The inspection, repair, adjustment, and maintenance for safe operation of steering apparatus, lights, brakes, horns, windshield wipers, wheels and axles, bushings, transmissions, differentials, motors, starters and ignition, carburetors, fifth wheels, springs and spring hangers, frames, and gasoline tanks. Inspecting and checking air pressure in tires, changing tires, and repairing and rebuilding tires for immediate replacement on the vehicles from which they were removed have also been held to affect safety of operation directly.62 The same is true of hooking up tractors and trailers, including light and brake connections, and the inspection of such hookups.63

61

64

(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 which, under the Commission's definitions referred to above, is that of a "mechanic" and directly affects the safety of operation of motor vehicles on the public highways in interstate or foreign commerce within the meaning of the Motor Carrier Act. The Commission's power to establish qualifications and maximum hours of service for such an employee has been sustained by the

60 Walling v. Silver Bros., 136 F. (2d) 168 (C. A. 1); McDuffie V. Hayes Freight Lines, 71 F. Supp. 755; Walling v. Silver Fleet Motor Express, 67 F. Supp. 846; Keeling v. Huber & Huber Motor Express, 57 F. Supp. 617; Walling v. Huber & Huber Motor Express, 67 F. Supp. 855; Tinerella v. Des Moines Transp. Co.., 41 F. Supp. 798; Robbins v. Zabarsky, 44 F. Supp. 867; West v. Smoky Mt. Stages, 40 F. Supp. 296; Walling v. Cumberland & Liberty Mills Co., (S. D. Fla.), 6 Labor Cases, par. 61,184; Esibill v. Marshall (D. N. J.), 6 Labor Cases, par. 61,256; Keegan v. Ruppert (S. D. N. Y.), 7 Labor Cases par. 61,726; Baker v. Sharpless-Hendler Ice Cream Co. (E. D. Pa.), 10 Labor Cases, par. 62,956; Kentucky Transport Co. v. Drake (Ky. Ct. App.), 182 S. W. (2d) 960.

McDuffie v. Hayes Freight Lines, 71 F. Supp. 755; Walling v. Silver Fleet Motor Express, 67 F. Supp. 846; Keeling V. Huber & Huber Motor Express, 57 F. Supp. 617; Wolfe v. Union Transfer & Storage Co., 48 F. Supp. 855; Mason & Dixon Lines v. Ligon (Tenn. Ct. App.), 7 Labor Cases, par 61,962; Walling v. Palmer, 67 F. Supp. 12; Kentucky Transport Co. v. Drake (Ky. Ct. App.), 182 S. W. (2d) 960.

Walling v. Silver Fleet Motor Express, 67 F. Supp. 846; Walling v. Palmer, 67 F. Supp. 12. Freight Lines, 71 F. Supp. 755. See also McDuffie v. Hayes

Walling v. Silver Fleet Motor Express, 67 F. Supp. 846; Walling v. Palmer, 67 F. Supp. 12. Transports (W. D. Tenn.), 10 Labor Cases par. 62,934, affirmed See also Walling v. Gordon's 162 F. (2d) 203 (C. A. 6), certiorari denied 332 U. S. 744.

footnote 39, above.

64 See sec. 782.2.

Cf.

courts. 65 A supervisory employee who plans and immediately directs and checks the proper performance of this class of work may come within the exemption as a partial-duty mechanic.66

(c) An employee of a carrier by motor vehicle is not exempted as a "mechanic" from the overtime provisions of the Fair Labor Standards Act under section 13 (b) (1) merely because he works in the carrier's garage, or because he is called a "mechanic," or because he is a mechanic by trade and does mechanical work. The exemption applies only if he is doing a class of work defined by the Commission as that of a "mechanic," including activities which, under the Commission's definitions, directly affect the safety of operation of motor vehicles in transportation on the public highways in interstate or foreign commerce."7 Activities which, according to the Commission, do not directly affect such safety of operation include those performed by employees whose jobs are confined to such work as that of dispatchers, carpenters, tarpaulin tailors, vehicle painters, or service men who do nothing but oil, gas, grease, or wash the motor vehicles. To these may be added activities such as filling radiators, checking batteries, and the usual work of such employees as stockroom personnel, watchmen, porters, and garage employees performing menial nondiscretionary tasks or disassembling work. Employees whose work is confined to such "nonsafety" activities are not

68

65 Morris v. McComb, 332 U. S. 422 (see also Pyramid Motor Freight Corp. v. Ispass, 330 U. S. 695; Levinson v. Spector Motor Service, 330 U. S. 649); Walling v. Silver Bros., 136 F. (2d) 168 (C. C. A. 1); McDuffie v. Hayes Freight Lines, 71 F. Supp. 755; Walling v. Silver Fleet Motor Express, 67 F. Supp. 846; Walling v. McGinley Co. (E. D. Tenn.), 12 Labor Cases, par. 63,731; Wolfe v. Union Transfer & Storage Co., 48 F. Supp. 855; Tinerella v. Des Moines Transp. Co., 41 F. Supp. 798; Robbins v. Zabarsky, 44 F. Supp. 867; Esibill v. Marshall (D. N. J.), 6 Labor Cases par. 61,256; Keegan v. Ruppert (S. D. N. Y.), 7 Labor Cases par. 61,726; Baker v. Sharpless Hendler Ice Cream Co. (E. D. Pa.), 10 Labor Cases, par. 62956; Mason & Dixon Lines v. Ligon (Tenn. Ct. App.), 7 Labor Cases par. 61,962; Kentucky Transport Co. v. Drake (Ky. Ct. App.); 182 S. W. (2d) 960.

66 Robbins v. Zabarsky, 44 F. Supp. 867; Mason & Dixon Lines v. Ligon (Tenn. Ct. App.), 7 Labor Cases par. 61,962; cf. Morris v. McComb, 332 U. S. 422 and Levinson v. Spector Motor Service, 330 U. S. 649.

67 Morris v. McComb, 332 U. S. 422; Keeling v. Huber & Huber Motor Express, 57 F. Supp. 617; Walling v. Huber & Huber Motor Express, 67 F. Supp. 855; Walling v. Silver Fleet Motor Express, 67 F. Supp. 846; McDuffie v. Hayes Freight Lines, 71 F. Supp. 755; Anuchick v. Transamerican Freight Lines, 46 F. Supp. 861; Walling v. Burlington Transp. Co. (D. Nebr.), 9 Labor Cases par. 62,576; Colbeck v. Dairyland Creamery Co. (S. D. Sup. Ct.), 17 N. W. (2d) 262. See also Pyramid Motor Freight Corp. v. Ispass, 330 U. S. 695. es Ex parte Nos. MC-2 and MC-3, 28 M. C. C. 125, 132, 133, 135.

69

within the exemption, even though the proper performance of their work may have an indirect effect on the safety of operation of the motor vehicles on the highways.70 The same has been held true of employees whose activities are confined to construction work, manufacture or rebuilding of truck, bus, or trailer bodies, repair of refrigeration equipment on the vehicles, 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."

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 different employees have the exclusive responsibility for determining whether the products of their work are suitable for use, and for the correct in

6 Morris v. McComb, 332 U. S. 422; Campbell v. Riss & Co. (W. D. Mo.), 5 Labor Cases par. 61,092 (dispatcher); McDuffie v. Hayes Freight Lines, 71 F. Supp. 755 (work of jaintor and caretaker, carpentry work, body building, removing paint, preparing for repainting, and painting); Walling v. Silver Fleet Motor Express, 67 F. Supp. 846 (body building, construction work, painting and lettering); Hutchinson v. Barry, 50 F. Supp. 292 (washing vehicles); Walling v. Paimer, 67 F. Supp. 12 putting water in radiators and batteries, oil and gas in vehicles, and washing vehicles); Anuchick v. Transamerican Freight Lines, 46 F. Supp. 861 (body builders, tarpaulin worker, stockroom boy, night watchman, porter); Bumpus v. Continental Baking Co. (W. D. Tenn.), 1 Wage Hour Cases 920 (painter), reversed on other grounds 124 F. (2d) 549; Green v. Riss & Co., 45 F. Supp. 648 (night watchmen and gas pump attendant); Walling v. Burlington Transp. Co. (D. Nebr), 9 Labor Cases par. 62,576 (body builders); Keegan v. Ruppert (S. D. N. Y.), 7 Labor Cases, par. 61,726 (greasing and washing); Walling v. East Texas Freight Lines (N. D. Tex.), 8 Labor Cases par. 62,083 (menial tasks); Collier v. Acme Freight Lines, unreported (S. D. Fla., Oct. 1943) (same); Potashnik Local Truck System v. Archer (Ark. Sup. Ct.), 179 S. W. (2d) 696 (checking trucks in and out and acting as night dispatcher, among other duties); Overnight Motor Corp. v. Missel, 316 U. S. 572 (rate clerk with parttime duties as dispatcher).

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. The Commission stated: "It is contended 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.)

71 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 v. Burlington Transp. Co. (D. Nebr.), 9 Labor Cases, par. 62,576; Colbeck v. Dairyland Creamery Co. (S. D. Sup. Ct.), 17 N. W. (2d) 262.

stallation of such parts, on the vehicles." Mechanical work on motor vehicles of a carrier which is performed in order to make the vehicles conform 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." 78 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."

73

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." 75 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

2 Keeling v. Huber & Huber Motor Express, 57 F. Supp. 617; Walling v. Huber & Huber Motor Express, 67 F. Supp. 855. T3 Kentucky Transport Co. v. Drake (Ky. Ct. App.), 182 S. W. (2d) 960; Anuchick v. Transamerican Freight Lines, 46 F. Supp. 861.

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

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 between any State and 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."

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. 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 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) 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

76 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.

See also

"Walling v. Craig, 53 F. Supp. 479 (D. Minn.). 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.

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.).

"Southland Gasoline Co. v. Bayley, 319 U. S. 44; Plunkett v. Arbraham Bros., 129 F. (2d) 419 (C. 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. C. A. 6); Walling v. MeGinley 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.

the State is not material.80 Transportation within 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 State 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 necessary, 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 Division 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

80 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.

84 For example, the Commission has held that transportation confined to points in a single State over highways located entirely within that State performed by a motor carrier on shipments destined to Puerto Rico is not in interstate or foreign commerce within the meaning of Part II of the Interstate Commerce Act, since Puerto Rico is neither a "State" nor a "foreign country" within the meaning of sections 203 (2), (8), (10), and (11) of the Act, 27 M. C. C. 463; 33 M. C. C. 660; 42 M. C. C. 451. The Fair Labor Standards Act is broader in its definition of interstate commerce in that section 3 (e) defines "State" to mean "any State of the United States or the District of Columbia or any Territory or possession of the United States." Employees engaged in connection with transportation of the type described above are engaged in interstate commerce within the meaning of the Fair Labor Standards Act. Since they are not subject to the Motor Carrier Act, 1935, because not engaged in interstate or foreign commerce within the meaning of that act, they are not within the exemption provided by section 13 (b) (1). [Footnote 84 amended, 24 F. R. 8019, Oct. 6, 1959.]

goods or persons being thus transported so as to constitute interstate commerce within the meaning of the Fair Labor Standards Act.85 Of course, engagement in local transportation which is entirely in intrastate commerce provides no basis for exempting a motor carrier employee.86

(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, 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 88 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

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.

86 See cases cited in footnote 25. See also paragraph (b) of this section.

87 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 Bulle tin, part 776 of this chapter on general coverage of the wage and hours provisions of the act.

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

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

90

(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

91

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.

90 New Pittsburgh Coal Co. v. Hocking 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. 1 These employees may also be engaged in the "production of goods for commerce" within the meaning of section 3 (j) of the Fair Labor Standards Act. See cases cited in footnotes 89 and 93, and see Part 776 of this chapter.