(a) A ``driver,'' as defined for Motor Carrier Act jurisdiction (49
CFR parts 390-395; Ex parte No. MC-2, 3 M.C.C. 665; Ex parte No. MC-3,
23 M.C.C.1; Ex parte No. MC-4, 1 M.C.C. 1), is an individual who drives
a motor vehicle in transporation which is, within the meaning of the
Motor Carrier Act, in interstate or foreign commerce. (As to what is
considered transportation in interstate or foreign commerce within the
meaning of the Motor Carrier Act, see Sec. 782.7). This definition does
not require that the individual be engaged in such work at all times; it
is recognized that even full-duty drivers devote some of their working
time to activities other than such driving. ``Drivers,'' as thus
officially defined, include, for example, such partial-duty drivers as
the following, who drive in interstate or foreign commerce as part of a
job in which they are required also to engage in other types of driving
or nondriving work: Individuals whose driving duties are concerned with
transportation some of which is in intrastate commerce and some of which
is in interstate or foreign commerce within the meaning of the Motor
Carrier Act; individuals who ride on motor vehicles engaged in
transportation in interstate or foreign commerce and act as assistant or
relief drivers of the vehicles in addition to helping with loading,
unloading, and similar work; drivers of
chartered buses or of farm trucks who have many duties unrelated to
driving or safety of operation of their vehicles in interstate
transportation on the highways; and so-called ``driver-salesmen'' who
devote much of their time to selling goods rather than to activities
affecting such safety of operation. (Levinson v. Spector Motor Service,
300 U.S. 649; Morris v. McComb, 332 U.S. 422; Richardson v. James
Gibbons Co., 132 F. (2d) 627 (C.A. 4), affirmed 319 U.S. 44; Gavril v.
Kraft Cheese Co., 42 F. Supp. 702 (N.D. Ill.); Walling v. Craig, 53 F.
Supp. 479 (D. Minn.); Vannoy v. Swift & Co. (Mo. S. Ct.), 201 S.W. (2d)
350; Ex parte No. MC-2, 3 M.C.C. 665; Ex parte No. MC-3, 23 M.C.C. 1; Ex
parte Nos. MC-2 and MC-3, 28 M.C.C. 125; Ex parte No. MC-4, 1 M.C.C. 1.
Cf. Colbeck v. Dairyland Creamery Co. (S.D. Supp. Ct.), 17 N.W. (2d)
262, in which the court held that the exemption did not apply to a
refrigeration mechanic by reason solely of the fact that he crossed
State lines in a truck in which he transported himself to and from the
various places at which he serviced equipment belonging to his
employer.)
(b) The work of an employee who is a full-duty or partial-duty
``driver,'' as the term ``driver'' is above defined, directly affects
``safety of operation'' within the meaning of section 204 of the Motor
Carrier Act whenever he drives a motor vehicle in interstate or foreign
commerce within the meaning of that act. (Levinson v. Spector Motor
Service, 330 U.S. 649, citing Richardson v. James Gibbons Co., 132 F.
(2d) 627 (C.A. 4), affirmed 319 U.S. 44; Morris v. McComb, 332 U.S. 422;
Ex parte No. MC-28, 13 M.C.C. 481, 482, 488; Ex parte Nos. MC-2 and MC-
3, 28 M.C.C. 125, 139 (Conclusion of Law No. 2). See also Ex parte No.
MC-2, 3 M.C.C. 665; Ex parte No. MC-3, 23 M.C.C. 1; Ex parte No. MC-4, 1
M.C.C. 1.) The Secretary has power to establish, and has established,
qualifications and maximum hours of service for such drivers employed by
common and contract carriers or passengers or property and by private
carriers of property pursuant to section 204, of the Motor Carrier Act.
(See Ex parte No. MC-4, 1 M.C.C. 1; Ex parte No. MC-2, 3 M.C.C. 665; Ex
parte No. MC-3, 23 M.C.C. 1; Ex parte No. MC-28, 13 M.C.C. 481; Levinson
v. Spector Motor Service, 330 U.S. 649; Southland Gasoline Co. v.
Bayley, 319 U.S. 44; Morris v. McComb, 332 U.S. 422; Safety Regulations
(Carriers by Motor Vehicle), 49 CFR parts 390, 391, 395) In accordance
with principles previously stated (see Sec. 782.2), such drivers to whom
this regulatory power extends are, accordingly, employees exempted from
the overtime requirements of the Fair Labor Standards Act by section
13(b)(1). (Southland Gasoline Co. v. Bayley, 319 U.S. 44; Levinson v.
Spector Motor Service, 330 U.S. 649; Morris v. McComb, 332 U.S. 422;
Rogers Cartage Co. v. Reynolds, 166 F. (2d) 317 (C.A. 6). This does not
mean that an employee of a carrier who drives a motor vehicle is
exempted as a ``driver'' by virtue of that fact alone. He is not exempt
if his job never involves transportation in interstate or foreign
commerce within the meaning of the Motor Carrier Act (see Secs. 782.2
(d) and (e), 782.7, and 782.8, or if he is employed by a private carrier
and the only such transportation called for by his job is not
transportation of property. (See Sec. 782.2. See also Ex parte No. MC-
28, 13 M.C.C. 481, Cf. Colbeck v. Dairyland Creamery Co. (S. Ct. S.D.),
17 N.W. (2d) 262 (driver of truck used only to transport himself to
jobsites, as an incident of his work in servicing his employer's
refrigeration equipment, held non exempt).) It has been held that so-
called ``hostlers'' who ``spot'' trucks and trailers at a terminal dock
for loading and unloading are not exempt as drivers merely because as an
incident of such duties they drive the trucks and tractors in and about
the premises of the trucking terminal. (Keegan v. Ruppert (S.D. N.Y.), 7
Labor Cases, par. 61,726 6 Wage Hour Rept. 676, cf. Walling v. Silver
Fleet Motor Express, 67 F. Supp. 846)
