the granting of authority to so operate would be consistent with the public interest.

Applicant has satisfactorily performed a transportation service for the shippers for which the proposed operation will be conducted for a period of more than 6 years. He owns and operates three tractors and three semitrailers. Since the transportation here involved provides for direct deliveries of traffic at present transported by applicant to branch plants and also furnishes some traffic for return trips, it does not appear that any additional equipment will be required for performing the proposed service. The record warrants the conclusion that he is fit and able, financially and otherwise, to conduct the operations hereinafter authorized.

We find that operation by applicant as a contract carrier by motor vehicle, in interstate or foreign commerce, of (1) meats, packing-house products, canned goods, salad dressings and relishes, dairy products, containers and packages for such commodities, stationery, wrapping paper, and advertising matter from St. Louis, Mo., and East St. Louis, Ill., to all points in Louisiana on routes 1, 3, and 4, except Haynesville, Monroe, Ruston, Arcadia, Gibsland, Minden, and Homer, over the routes described in the appendix hereto, and (2) fresh and cured meats from Lake Charles, La., to El Dorado and Little Rock, Ark., over the applicable portion of routes 1 and 3, and that operation over route 2 in connection with applicant's presently authorized service will be consistent with the public interest and with the national transportation policy declared in the Interstate Commerce Act; that applicant is fit, willing, and able properly to perform such service and to conform to the provisions of the act and our rules and regulations thereunder; that a permit authorizing such operation should be granted; and that in all other respects the application should be denied. The authority herein. granted shall not be construed as duplicating any other authority heretofore granted.

Upon compliance by applicant with the requirements of sections 215 and 218 of the act, with our rules and regulations thereunder, and with the requirements established in Contracts of Contract Carriers, 1 M. C. C. 628, an appropriate permit will be issued. An order will be entered denying the application except to the extent indicated.

APPENDIX

Routes authorized

Route 1, from St. Louis, Mo., to Ruston, La.: From St. Louis over U. S. Highway 61 to West Memphis, Ark., thence over U. S. Highway 70 to Little Rock, Ark., thence over U. S. Highway 167 to Fordyce, Ark. (also from junc

tion of U. S. Highway 70 and Arkansas Highway 11, near Hazen, Ark., over Arkansas Highway 11 to Stuttgart, Ark., thence over U. S. Highway 79 to Fordyce), thence over U. S. Highway 79 to Camden, Ark., thence over Arkansas Highway 7 to El Dorado, Ark., and thence over U. S. Highway 167 to Ruston.

Route 2, from St. Louis, Mo., to Little Rock, Ark.: From St. Louis across the Mississippi River to East St. Louis, Ill., thence over Illinois Highway 13 to Belleville, Ill., thence over Illinois Highway 159 to Red Bud, Ill., thence over Illinois Highway 3 to Ware, Ill., thence over Illinois Highway 146 to the Mississippi River, thence across the river to Cape Girardeau, Mo., thence over U. S. Highway 61 to Sikeston, Mo., thence over U. S. Highway 60 to Poplar Bluff, Mo., and thence over U. S. Highway 67 to Little Rock.

Route 3, from Ruston, La., to Lake Charles, La.: From Ruston over U. S. Highway 167 to its junction with U. S. Highway 71, thence over U. S. Highway 71 to Alexandria, La., thence over U. S. Highway 165 to Iowa, La., and thence over U. S. Highway 90 to Lake Charles; and from Ruston over U. S. Highway 80 to Monroe, La., thence over U. S. Highway 165 to Alexandria, and thence to Lake Charles as specified above.

Route 4, from Ruston, La., to Haynesville, La.: From Ruston over U. S. Highway 80 to Minden, La., and thence over U. S. Highway 79 to Haynesville.

28 M. C. C.

EX PARTE No. MC-21

IN THE MATTER OF MAXIMUM HOURS OF SERVICE OF MOTOR CARRIER EMPLOYEES

Submitted January 30, 1941. Decided March 4, 1941

1. Mechanics, loaders, and drivers' helpers, employed by common, contract, and private carriers, found to perform duties which affect the safety of operation of motor vehicles and therefore subject to the Commission's authority to prescribe qualifications and maximum hours of service pursuant to section 204 (a) of the Interstate Commerce Act.

2 All other employees, except drivers, found to perform duties not affecting safety of operation of motor vehicles and therefore not subject to the Commission's authority.

David Axelrod, Joseph M. Adelizzi, Edward S. Brashears, Henry G. Beyer, J. W. Blood, H. J. Bischoff, Don Burrows, Clarence F. Carey, C. S. Connolly, Carl L. Crocker, C. D. Cass, Eugene L. Cohn, G. H. Dilla, A. P. Donadio, George S. Dixon, E. W. Dallman, E. S. DePass, C. S. Decker, George Faunce, Jr., H. O. Haley, Louis J. Freehof, B. L. Goldberg, Leonard Gordon, James C. James, John A. Wright, Ewald E. Kundtz, William Lawrence, L. A. Keck, A. E. Later, L. C. Loughry, B. W. LaTourette, William J. Lynch, Jr., Jeremiah O'Leary, L. E. Luth, C. R. Morrow, James Roy Mills, Harold E. Marks, Sterling G. McNees, Tom J. McGrath, Carl R. Olson, William H. Ott, Jr., L. F. Orr, Joseph Padway, B. C. Popp, E. B. Kronvall, Marion B. Pierce, Robert E. Quirk, Frank H. Rawlings, A. K. Randolph, E. S. Morris, Lee Reeder, Glenn W. Stephens, Leland Taliaferro, Clarence E. Tanke, Fred A. Tobin, W. M. Touhy, Floyd D. Strong, H. C. Smiley, Colin A. Smith, J. G. Williams, O. David Zimring, Harold S. Walters, George M. Eichler, Joseph F. Finnegan, C. E. Widell, Nathan S. Sherman, Louis A. Cohan, Axel Elson, Robert J. Wieferich, Howell Ellis, Floyd F. Shields, K. F. Clardy, Wilmer A. Hill, Ivan Bowen, and Jack R. Turney, Jr., and other appearances as set forth in prior reports.

1 This report also embraces Ex Parte No. MC-3, In the Matter of Need for Establishing Reasonable Requirements to Promote Safety of Operation of Motor Vehicles Used in Transporting Property by Private Carriers.

28 M. C. C.

BY THE COMMISSION:

REPORT OF THE COMMISSION

The sole question presented for our decision at this time is the determination of which employees of common or contract carriers and private carriers of property by motor vehicle, if any, other than drivers, perform duties which affect the safety of operation and are therefore subject to the authority conferred on us by section 204 (a) (1), (2), and (3) of part II (formerly cited as the Motor Carrier Act, 1935) of the Interstate Commerce Act to prescribe qualifications and maximum hours of service. The importance of this question is emphasized by the fact that section 13 (b) (1) of the Fair Labor Standards Act exempts from the overtime provisions of section 7 thereof any employee with respect to whom we have power to establish qualifications and maximum hours of service pursuant to the provisions of said section 204. Before the Wage and Hour Division of the Department of Labor, which administers the provisions of the Fair Labor Standards Act, or the common, contract, and private carriers can well determine which employees are subject to the provisions of section 7 of that act, they must know the extent of our jurisdiction.

THE STATUTES

Section 204 (a) (1) of part II reads as follows:

It shall be the duty of the Commission to regulate common carriers by motor vehicle as provided in this part, and to that end the Commission may establish reasonable requirements with respect to continuous and adequate service, transportation of baggage and express, uniform systems of accounts, records, and reports, preservation of records, qualifications and maximum hours of service of employees, and safety of operation and equipment.

Section 204 (a) (2) is identical with paragraph (1) except that it relates to contract carriers, while paragraph (1) relates to common carriers.

Section 204 (a) (3) differs from paragraphs (1) and (2), and reads as follows:

It shall be the duty of the Commission to establish for private carriers of property by motor vehicle if need therefor is found, reasonable requirements to promote safety of operation, and to that end prescribe qualifications and maximum hours of service of employees, and standards of equipment. In the event such requirements are established, the term "motor carrier" shall be construed to include private carriers of property by motor vehicle in the administration of sections 204 (c); 205; 220; 221; 222 (a), (b), (d), (f), and (g); and 224.

Section 7 (a) (3) of the Fair Labor Standards Act is as follows:

No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods

for commerce for a workweek longer than forty hours after the expiration of the second year from such date, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

Section 13 (b) (1) of the Fair Labor Standards Act is as follows: The provisions of section 7 shall not apply with respect to any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 204 of the Motor Carrier Act, 1935;

PRIOR PROCEEDINGS

The Fair Labor Standards Act was approved June 25, 1938. Shortly thereafter, we realized the necessity of determining the extent of our authority under section 204 (a), and on our own motion we instituted a proceeding known as Ex Parte No. MC-28 for that purpose. We requested interested parties to file briefs, and heard oral argument. In their arguments before us, the representatives of common and contract carriers contended that our authority under section 204 (a) (1) and (2) was sufficiently broad to cover all employees of such carriers. Representatives of organized labor contended that our authority to prescribe qualifications and maximum hours of service was limited to those employees who perform duties which affect safety of operation.

Representatives of private carriers of property did not, in that proceeding nor in any other proceding, contend that our authority extended beyond employees whose activities affect safety of operation. This, no doubt, is due to the specific provisions of section 204 (a) (3) which, as stated, differ materially from those of the two preceeding paragraphs of that section.

On May 9, 1939, we issued our report, Jurisdiction over Employees of Motor Carriers, 13 M. C. C. 481, and expressed our opinion as to the extent of our authority. Dealing first with private carriers of property, we said, page 482:

We shall first dispose of the limited question of the extent of our power to prescribe qualifications and maximum hours of service for employees of private carriers of property, using the word "power" herein in view of the fact that it is the word used in the exemption contained in section 13 (b) of the Fair Labor Standards Act quoted above. Because of the precise wording of section 204 (a) (3) we have no doubt that our power under that section is limited to prescribing qualifications and maximum hours of service for those employees only whose activities affect the safety of operation of motor vehicles engaged in transporting property in interstate and foreign commerce. [Emphasis supplied.]