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 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.79 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.

"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.

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. 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.

the State is not material.so 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 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 singe State over highways located entirely within that State performed by a motor carrier on shipments destined to Puerto Rico, Hawaii, or Alaska is not in interstate or foreign commerce within the meaning of Part II of the Interstate Commerce Act, since Hawaii, Puerto Rico, and Alaska are neither "States" nor "foreign countries" 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).

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

87

(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." 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.

88 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 Bulletin, 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

CODIFICATION: Sec. 782.7 was amended in the following respects, 16 F. R. 4272, May 9, 1951:

1. In paragraph (a) footnote 75 was amended to read as set forth.

2. The fourth sentence of paragraph (b) was amended to read as set forth above.

3. Paragraph (c) was amended to read as set forth above.

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.90 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. 91 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.

94

(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. 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. 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

(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 * *** railroad ** express company

a

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

***

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

94 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.

Repsher v. Streppy (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.

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.

CODIFICATION: In sec. 782.8 footnote 92 was amended to read as set forth below, 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). blade v. Parmelee Transp. Co. (C. A. 7), 166 F. (2d) 554, 14 Cf. CedarLabor Cases, par. 64,340. water carrier, or freight forwarder outside of the scope of Part Thus, only employees of a railroad, 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.

JUNE 1958 REPRINT

U. S. GOVERNMENT PRINTING OFFICE: 1958