(a) A Driver's ``helper,'' as defined for Motor Carrier Act
jurisdiction (Ex Parte Nos. MC-2 and MC-3, 28 M.C.C. 125, 135, 136, 138,
139), is an employee other than a driver, who is required to ride on a
motor vehicle when it is being operated in interstate or foreign
commerce within the meaning of the Motor Carrier Act. (The term does not
include employees who ride on the vehicle and act as assistants or
relief drivers. Ex
parte Nos. MC-2 and MC-3, supra. See Sec. 782.3.) This definition has
classified all such employees, including armed guards on armored trucks
and conductorettes on buses, as ``helpers'' with respect to whom he has
power to establish qualifications and maximum hours of service because
of their engagement in some or all of the following activities which, in
his opinion, directly affect the safety of operation of such motor
vehicles in interstate or foreign commerce (Ex parte Nos. MC-2 and MC-3,
28 M.C.C. 125, 135-136): Assist in loading the vehicles (they may also
assist in unloading (Ex parte Nos. MC-2 and MC-3, supra), an activity
which has been held not to affect ``safety of operation,'' see
Sec. 782.5(c); as to what it meant by ``loading'' which directly affects
``safety of operation,'' see Sec. 782.5(a)); dismount when the vehicle
approaches a railroad crossing and flag the driver across the tracks,
and perform a similar duty when the vehicle is being turned around on a
busy highway or when it is entering or emerging from a driveway; in case
of a breakdown: (1) Place the flags, flares, and fuses as required by
the safety regulations. (2) go for assistance while the driver protects
the vehicle on the highway, or vice versa, or (3) assist the driver in
changing tires or making minor repairs; and assist in putting on or
removing chains.
(b) An employee may be a ``helper'' under the official definition
even though such safety-affecting activities constitute but a minor part
of his job. Thus, although the primary duty of armed guards on armored
trucks is to protect the valuables in the case of attempted robberies,
they are classified as ``helpers'' where they ride on such trucks being
operated in interstate or foreign commerce, because, in the case of an
accident or other emergency and in other respects, they act in a
capacity somewhat similar to that of the helpers described in the text.
Similarly, conductorettes on buses whose primary duties are to see to
the comfort of the passengers are classified as ``helpers'' whose such
buses are being operated in interstate or foreign commerce, because in
instances when accidents occur, they help the driver in obtaining aid
and protect the vehicle from oncoming traffic.
(c) In accordance with principles previously stated (see
Sec. 782.2), the section 13(b)(1) exemption applies to employees who
are, under the Secretary of Transporation's definitions, engaged in such
activities as full- or partial-duty ``helpers'' on motor vehicles being
operated in transporation in interstate or foreign commerce within the
meaning of the Motor Carrier Act. (Ispass v. Pyramid Motor Freight
Corp., 152 F. (2d) 619 (C.A. 2); Walling v. McGinley Co. (E.D. Tenn.),
12 Labor Cases, par. 63,731, 6 W.H. Cases 916. See also Levinson v.
Spector Motor Service, 330 U.S. 649; Pyramid Motor Freight Corp. v.
Ispass, 330 U.S. 695; Dallum v. Farmers, Coop Trucking Assn. 46 F. Supp.
785 (D. Minn.).) The exemption has been held inapplicable to so-called
helpers who ride on motor vehicles but do not engage in any of the
activities of ``helpers'' which have been found to affect directly the
safety of operation of such vehicles in interstate or foreign commerce.
(Walling v. Gordon's Transports (W.D. Tenn.) 10 Labor Cases par. 62,934,
6 W.H. Cases 831, affirmed 162 F. (2d) 203 (C.A. 6), certiorari denied,
332 U.S. 774 (helpers on city ``pickup and delivery trucks'' where it
was not shown that the loading in any manner affected safety of
operation and the helper's activities were ``in no manner similar'' to
those of a driver's helper in over-the-road operation).) It should be
noted also that an employee, to be exempted as a driver's ``helper''
under the Secretary's definitions, must be ``required'' as part of his
job to ride on a motor vehicle when it is being operated in interstate
or foreign commerce; an employee of a motor carrier is not exempted as a
``helper'' when he rides on such a vehicle, not as a matter of fixed
duty, but merely as a convenient means of getting himself to, from, or
between places where he performs his assigned work. (See Pyramid Motor
Freight Corp. v. Ispass, 330 U.S. 695, modifying, on other grounds, 152
F. (2d) 619 (C.A. 2).)
