(a) A ``loader,'' as defined for Motor Carrier Act jurisdiction (Ex
parte Nos. MC-2 and MC-3, 28 M.C.C. 125, 133, 134,
139), is an employee of a carrier subject to section 204 of the Motor
Carrier Act (other than a driver or driver's helper as defined in
Secs. 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. (Levinson v.
Spector Motor Service, 300 U.S. 649; Pyramid Motor Freight Corp. v.
Ispass, 330 U.S. 695; Walling v. Gordon's Transport (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; Ex parte Nos. MC-2 and MC-3, 28 M.C.C. 125, 133, 134)
(b) The section 13(b)(1) exemption applies, in accordance with
principles previously stated (see Sec. 782.2), to an employee whose job
involves activities consisting wholly or in part of doing, or
immediately directing, a class of work defined: (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 Secretary of Transporation has power to establish qualifications and
maximum hours of service. (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.) 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.
(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. 885; Walling v. Silver Fleet Motor
Express, 67 F. Supp. 846; Crean v. Moran Transporation 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.)
(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 directly
affects ``safety of operation.'' (Pyramid Motor Freight Corp. v. Ispass,
330 U.S. 695; Levinson v. Spector Motor Service, 330 U.S. 649) 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 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. (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.) As is apparent from 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, it is 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 operations.'' Support
for this conclusion is found in Wirtz v. C&P Shoe Corp. 335 F. (2d) 21
(C.A. 5), wherein the court held the loading of boxes of shoes,
patterned on the last in, first out principle clearly was not of a
safety affecting character ``in view of the light weight of the cargo
involved.'' In the case of coal trucks which are loaded from stockpiles
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).
(Barrick v. South Chicago Coal & Dock Co. (N.D. Ill.), 8 Labor Cases,
par. 62,242, affirmed 149 F. (2d) 960 (C.A. 7).) It seems 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 inplace, 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.
(See Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695; Yellow Transit
Freight Lines Inc. v. Balven, 320 F. (2d) 495 (C.A. 8); Foremost Dairies
v. Ivey, 204 F. (2d) 186 (C.A. 5); Ispass v. Pyramid Motor Freight
Corp., 78 F. Supp. 475 (S.D. N.Y.); Mitchell v. Meco Steel Supply Co.,
183 F. Supp. 779 (S.D. Tex.); Garton v. Sanders Transfer & Storage Co.,
124 F. Supp. 84 (M.D. Tenn.); 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 Transporation 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.)
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 official definitions. (See Ex parte Nos.
MC-2 and MC-3, 28 M.C.C. 125, 133, 134).
