(a) The Interstate Commerce Commission consistently maintained that
transportation with a State of consumable goods (such as food, coal, and
ice) to railroad, docks, etc., for use of trains and steamships is not
such transportation as is subject to its jurisdiction. (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.) 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. 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 Sec. 782.7(c),
and see Mitchell v. Independent Ice Co., 294 F. 2d 186 (C.A. 5),
certiorari denied 368 U.S. 952, and part 776 of this chapter. Since the
Commission has disclaimed jurisdiction over this type of operation (see,
in this connection Sec. 782.7(b)), it is the Division's opinion that
drivers, driver's 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). (See Hansen v. Salinas Valley Ice Co.
(Cal. App.), 144 P. (2d) 896.)
(b) Prior to June 14, 1972, when the Department of Transportation
published a notice in the Federal Register (37 FR 11781) asserting its
power to establish qualifications and maximum hours of service of
employees of contract mail haulers, thereby reversing the long-standing
position of the Interstate Commerce Commission, the Administrator of the
Wage and Hour Division had taken the position that employees engaged in
the transportation of mail under contract with the Postal Service were
not within the exemption provided by section 13(b)(1) of the Fair Labor
Standards Act. As the
result of the notice of June 14, 1972, the Administrator will no longer
assert that employees of contract mail carriers are not within the
13(b)(1) exemption for overtime work performed after June 14, 1972,
pending authoritative court decisions to the contrary. This position is
adopted without prejudice to the rights of individual employees under
section 16(b) of the Fair Labor Standards Act.
(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
pickup and delivery service for a railroad, express company, or water
carrier are to be regarded as within the 13(b)(1) exemption. (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.) The same is true of drivers, drivers' helpers,
loaders, and mechanics employed directly by a railroad, a water carrier
or a freight forwarder in pickup 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. See Morris v. McComb, 332 U.S. 422
and Sec. 782.2(a). (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.) Both before and after the amendments referred
to, it has been the Division's position that the 13(b)(1) exemption is
applicable to drivers, drivers' helpers, loaders, and mechanics employed
in pickup and delivery service to line-haul 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.
(d) The determinations of the Interstate Commerce Commission
discussed in paragraphs (a), (b), and (c) of this section have not been
amended or revoked by the Secretary of Transportation. These
determinations will continue to guide the Administrator of the Wage and
Hour Division in his enforcement of section 13(b)(1) of the Fair Labor
Standards Act.
[36 FR 21778, Nov. 13, 1971, as amended at 37 FR 23638, Nov. 7, 1972]
