(a) The exemption of an employee from the hours provisions of the
Fair Labor Standards Act under section 13(b)(1) depends both on the
class to which his employer belongs and on the class of work involved in
the employee's job. The power of the Secretary of Transportation to
establish maximum hours and qualifications of service of employees, on
which exemption depends, extends to those classes of employees and those
only who: (1) Are employed by carriers whose transportation of
passengers or property by motor vehicle is subject to his jurisdiction
under section 204 of the Motor Carrier Act (Boutell v. Walling, 327 U.S.
463; Walling v. Casale, 51 F. Supp. 520; and see Ex parte Nos. MC-2 and
MC-3, in the Matter of Maximum Hours of Service of Motor Carrier
Employees, 28 M.C.C. 125, 132), and (2) engage in activities of a
character directly affecting the safety of operation of motor vehicles
in the transportation on the public highways of passengers or property
in interstate or foreign commerce within the meaning of the Motor
Carrier Act. United States v. American Trucking Assns., 310 U.S. 534;
Levinson v. Spector Motor Service, 330 U.S. 649; Ex parte No. MC-28, 13
M.C.C. 481; Ex parte Nos. MC-2 and MC-3, 28 M.C.C. 125; Walling v. Comet
Carriers, 151 F. (2d) 107 (C.A. 2).
(b)(1) The carriers whose transportation activities are subject to
the Secretary of Transportation jurisdiction are specified in the Motor
Carrier Act itself (see Sec. 782.1). His jurisdiction over private
carriers is limited by the statute to private carriers of property by
motor vehicle, as defined therein, while his jurisdiction extends to
common and contract carriers of both passengers and property. See also
the discussion of special classes of carriers in Sec. 782.8. And see
paragraph (d) of this section. The U.S. Supreme Court has accepted the
Agency determination, that activities of this character are included in
the kinds of work which has been defined as the work of drivers,
driver's helpers, loaders, and mechanics (see Secs. 782.3 to 782.6)
employed by such carriers, and that no other classes of employees
employed by such carriers perform duties directly affecting such
``safety of operation.'' Ex parte No. MC-2, 11 M.C.C. 203; Ex parte No.
MC-28, 13 M.C.C. 481; Ex parte No. MC-3, 23 M.C.C. 1; Ex parte Nos. MC-2
and MC-3, 28 M.C.C. 125; Levinson v. Spector Motor Service, 330 U.S.
649; Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695; Southland
Gasoline Co. v. Bayley, 319 U.S. 44. See also paragraph (d) of this
section and Secs. 782.3 through 782.8.
(2) The exemption is applicable, under decisions of the U.S. Supreme
Court, to those employees and those only whose work involves engagement
in activities consisting wholly or in part of a class of work which is
defined: (i) As that of a driver, driver's helper, loader, or mechanic,
and (ii) as directly affecting the safety of operation of motor vehicles
on the public highways in transportation in interstate or foreign
commerce within the meaning of the Motor Carrier Act. Pyramid Motor
Freight Corp. v. Ispass, 330 U.S. 695; Levinson v. Spector Motor
Service, 330 U.S. 649; Morris v. McComb, 332 U.S. 442. Although the
Supreme Court recognized that the special knowledge and experience
required to determine what classifications of work affects safety of
operation of interstate motor carriers was applied by the Commission, it
has made it clear that the determination whether or not an individual
employee is within any such classification is to be determined by
judicial process. (Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695;
Cf. Missel v. Overnight Motor Transp., 40 F. Supp. 174 (D. Md.),
reversed on other grounds 126 F. (2d) 98
(C.A. 4), affirmed 316 U.S. 572; West v. Smoky Mountains Stages, 40 F.
Supp. 296 (N.D. Ga.); Magann v. Long's Baggage Transfer Co., 39 F. Supp.
742 (W.D. Va.); Walling v. Burlington Transp. Co. (D. Nebr.), 5 W.H.
Cases 172, 9 Labor Cases par. 62,576; Hager v. Brinks, Inc., 6 W.H.
Cases 262 (N.D. Ill.)) In determining whether an employee falls within
such an exempt category, neither the name given to his position nor that
given to the work that he does is controlling (Pyramid Motor Freight
Corp. v. Ispass, 330 U.S. 695; Porter v. Poindexter, 158 F.--(2d) 759
(C.A. 10); Keeling v. Huber & Huber Motor Express, 57 F. Supp. 617 (W.D.
Ky.); Crean v. Moran Transp. Lines (W.D. N.Y.) 9 Labor Cases, par.
62,416 (see also earlier opinion in 54 F. Supp. 765)); what is
controlling is the character of the activities involved in the
performance of his job.
(3) As a general rule, if the bona fide duties of the job performed
by the employee are in fact such that he is (or, in the case of a member
of a group of drivers, driver's helpers, loaders, or mechanics employed
by a common carrier and engaged in safety-affecting occupations, that he
is likely to be) called upon in the ordinary course of his work to
perform, either regularly or from time to time, safety-affecting
activities of the character described in paragraph (b)(2) of this
section, he comes within the exemption in all workweeks when he is
employed at such job. This general rule assumes that the activities
involved in the continuing duties of the job in all such workweeks will
include activities which have been determined to affect directly the
safety of operation of motor vehicles on the public highways in
transportation in interstate commerce. Where this is the case, the rule
applies regardless of the proportion of the employee's time or of his
activities which is actually devoted to such safety-affecting work in
the particular workweek, and the exemption will be applicable even in a
workweek when the employee happens to perform no work directly affecting
``safety of operation.'' On the other hand, where the continuing duties
of the employee's job have no substantial direct effect on such safety
of operation or where such safety-affecting activities are so trivial,
casual, and insignificant as to be de minimis, the exemption will not
apply to him in any workweek so long as there is no change in his
duties. (Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695; Morris v.
McComb, 332 U.S. 422; Levinson v. Spector Motor Service, 330 U.S. 649;
Rogers Cartage Co. v. Reynolds, 166 F. (2d) 317 (C.A. 6); Opelika
Bottling Co. v. Goldberg, 299 F. (2d) 37 (C.A. 5); Tobin v. Mason &
Dixon Lines, Inc., 102 F. Supp. 466 (E.D. Tenn.)) If in particular
workweeks other duties are assigned to him which result, in those
workweeks, in his performance of activities directly affecting the
safety of operation of motor vehicles in interstate commerce on the
public highways, the exemption will be applicable to him those
workweeks, but not in the workweeks when he continues to perform the
duties of the non-safety-affecting job.
(4) Where the same employee of a carrier is shifted from one job to
another periodically or on occasion, the application of the exemption to
him in a particular workweek is tested by application of the above
principles to the job or jobs in which he is employed in that workweek.
Similarly, in the case of an employee of a private carrier whose job
does not require him to engage regularly in exempt safety-affecting
activities described in paragraph (b)(1) of this section and whose
engagement in such activities occurs sporadically or occasionally as the
result of his work assignments at a particular time, the exemption will
apply to him only in those workweeks when he engages in such activities.
Also, because the jurisdiction of the Secretary of Transportation over
private carriers is limited to carriers of property (see paragraph
(b)(1) of this section) a driver, driver's helper, loader, or mechanic
employed by a private carrier is not within the exemption in any
workweek when his safety-affecting activities relate only to the
transporation of passengers and not to the transportation of property.
(c) The application of these principles may be illustrated as
follows:
(1) In a situation considered by the U.S. Supreme Court,
approximately 4 percent of the total trips made by drivers employed by a
common carrier by motor vehicle involved in the hauling
of interstate freight. Since it appeared that employer, as a common
carrier, was obligated to take such business, and that any driver might
be called upon at any time to perform such work, which was
indiscriminately distributed among the drivers, the Court considered
that such trips were a natural, integral, and apparently inseparable
part of the common carrier service performed by the employer and driver
employees. Under these circumstances, the Court concluded that such
work, which directly affected the safety of operation of the vehicles in
interstate commerce, brought the entire classification of drivers
employed by the carrier under the power of the Interstate Commerce
Commission to establish qualifications and maximum hours of service, so
that all were exempt even though the interstate driving on particular
employees was sporadic and occasional, and in practice some drivers
would not be called upon for long periods to perform any such work.
(Morris v. McComb, 332 U.S. 422)
(2) In another situation, the U.S. Court of Appeals (Seventh
Circuit) held that the exemption would not apply to truckdrivers
employed by a private carrier on interstate routes who engaged in no
safety-affecting activities of the character described above even though
other drivers of the carrier on interstate routes were subject to the
jurisdiction of the Motor Carrier Act. The court reaffirmed the
principle that the exemption depends not only upon the class to which
the employer belongs but also the activities of the individual employee.
(Goldberg v. Faber Industries, 291 F. (2d) 232)
(d) The limitations, mentioned in paragraph (a) of this section, on
the regulatory power of the Secretary of Transportation (as successor to
the Interstate Commerce Commission) under section 204 of the Motor
Carrier Act are also limitations on the scope of the exemption. Thus,
the exemption does not apply to employees of carriers who are not
carriers subject to his jurisdiction, or to employees of noncarriers
such as commercial garages, firms engaged in the business of maintaining
and repairing motor vehicles owned and operated by carriers, firms
engaged in the leasing and renting of motor vehicles to carriers and in
keeping such vehicles in condition for service pursuant to the lease or
rental agreements. (Boutell v. Walling, 327 U.S. 463; Walling v. Casale,
51 F. Supp. 520). Similarly, the exemption does not apply to an employee
whose job does not involve engagement in any activities which have been
defined as those of drivers, drivers' helpers, loaders, or mechanics,
and as directly affecting the ``safety of operation'' of motor vehicles.
(Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695; Levinson v.
Spector Motor Service, 330 U.S. 649; United States v. American Trucking
Assn., 310 U.S. 534; Gordon's Transports v. Walling, 162 F. (2d) 203
(C.A. 6); Porter v. Poindexter, 158 F. (2d) 759 (C.A. 10)) Except
insofar as the Commission has found that the activities of drivers,
drivers' helpers, loaders, and mechanics, as defined by it, directly
affect such ``safety of operation,'' it has disclaimed its power to
establish qualifications of maximum hours of service under section 204
of the Motor Carrier Act. (Pyramid Motor Freight Corp. v. Ispass, 330
U.S. 695) Safety of operation as used in section 204 of the Motor
Carrier Act means ``the safety of operation of motor vehicles in the
transportation of passengers or property in interstate or foreign
commerce, and that alone.'' (Ex parte Nos. MC-2 and MC-3 (Conclusions of
Law No. 1), 28 M.C.C. 125, 139) Thus the activities of drivers, drivers'
helpers, loaders, or mechanics in connection with transportation which
is not in interstate of foreign commerce within the meaning of the Motor
Carrier Act provide no basis for exemption under section 13(b)(1) of the
Fair Labor Standards Act. (Walling, v. Comet Carriers, 151 F. (2d) 107
(C.C.A. 2); Hansen v. Salinas Valley Ice Co. (Cal. App.) 144 P. (2d)
896; Reynolds v. Rogers Cartage Co., 71 F. Supp. 870 (W.D. Ky.),
reversed on other grounds, 166 F. (d) 317 (C.A. 6); Earle v. Brinks,
Inc., 54 F. Supp. 676 (S.D. N.Y.); Walling v. Villaume Box & Lumber Co.,
58 F. Supp. 150 (D. Minn.); Hager v. Brinks, Inc., 11 Labor Cases, par.
63,296 (N.D. Ill.), 6 W.H. Cases 262; Walling v. DeSoto Creamery &
Produce Co., 51 F. Supp. 938 (D. Minn.); Dallum v. Farmers Cooperative
Trucking Assn., 46 F. Supp. 785 (D. Minn.); McLendon v. Bewely Mills
(N.D. Tex.); 3 Labor Cases,
par. 60,247, 1 W.H. Cases 934; Gibson v. Glasgow (Tenn. Sup. Ct.), 157
S.W. (2d) 814; cf. Morris v. McComb, 332 U.S. 422. See also Sec. 782.1
and Secs. 782.7 through 782.8.)
(e) The jurisdiction of the Secretary of Transportation under
section 204 of the Motor Carrier Act relates to safety of operation of
motor vehicles only, and ``to the safety of operation of such vehicles
on the highways of the country, and that alone.'' (Ex parte Nos. MC-2
and MC-3, 28 M.C.C. 125, 192. See also United States v. American
Trucking Assns., 319 U.S. 534, 548.) Accordingly, the exemption does not
extend to employees merely because they engage in activities affecting
the safety of operation of motor vehicles operated on private premises.
Nor does it extend to employees engaged solely in such activities as
operating freight and passenger elevators in the carrier's terminals of
moving freight or baggage therein or the docks or streets by hand
trucks, which activities have no connection with the actual operation of
motor vehicles. (Gordon's Transport v. Walling, 162 F. (2d) 203 (C.A.
6), certorari denied 322 U.S. 774; Walling v. Comet Carriers, 57 F.
Supp. 1018, affirmed, 151 F. (2d) 107 (C.A. 2), certiorari dismissed,
382 U.S. 819; Gibson v. Glasgow (Tenn. Sup. Ct.), 157 S.W. (2d) 814; Ex
parte Nos. MC-2 and MC-3, 28 M.C.C. 125, 128. See also Pyramid Motor
Freight Corp. v. Ispass, 330 U.S. 695; Levinson v. Spector Motor Serv.,
330 U.S. 949.)
(f) Certain classes of employees who are not within the definitions
of drivers, driver's helpers, loaders, and mechanics are mentioned in
Secs. 782.3-782.6, inclusive. Others who do not come within these
definitions include the following, whose duties are considered to affect
safety of operation, if at all, only indirectly; stenographers
(including those who write letters relating to safety or prepare
accident reports); clerks of all classes (including rate clerks, billing
clerks, clerks engaged in preparing schedules, and filing clerks in
charge of filing accident reports, hours-of-service records, inspection
reports, and similar documents); foremen, warehousemen, superintendents,
salesmen, and employees acting in an executive capacity. (Ex parte Nos.
MC-2 and MC-3, 28 M.C.C. 125; Ex parte No. MC-28, 13 M.C.C. 481. But see
Secs. 782.5(b) and 782.6(b) as to certain foremen and superintendents.)
Such employees are not within the section 13(b)(1) exemption. (Overnight
Motor Transp. Co. v. Missel, 316 U.S. 572 (rate clerk who performed
incidental duties as cashier and dispatcher); Levinson v. Spector Motor
Service, 330 U.S. 649; Porter v. Poindexter, 158 F. (2d) 759 (C.A. 10)
(checker of freight and bill collector); Potashnik, Local Truck System
v. Archer (Ark. Sup. Ct.), 179 S.W. (2d) 696 (night manager who did
clerical work on waybills, filed day's accumulation of bills and
records, billed out local accumulation of shipments, checked mileage on
trucks and made written reports, acted as night dispatcher, answered
telephone calls, etc.).)
