(a) As explained in preceding sections of this part, section
13(b)(1) of the Fair Labor Standards Act does not exempt an employee of
a carrier from the act's overtime provisions unless it appears, among
other things, that his activities as a driver, driver's helper, loader,
or mechanic directly affect the safety of operation of motor vehicles in
transportation in interstate or foreign commerce within the meaning of
the Motor Carrier Act. What constitutes such transportation in
interstate or foreign commerce, sufficient to bring such an employee
within the regulatory power of the Secretary of Transportation under
section 204 of that act, is determined by definitions contained in the
Motor Carrier Act itself. These definitions are, however, not identical
with the definitions in the Fair Labor Standards Act which determine
whether an employee is within the general coverage of the wage and hours
provisions as an employee ``engaged in (interstate or foreign)
commerce.'' For this reason, the interstate commerce requirements of the
section 13(b)(1) exemption are not necessarily met by establishing that
an employee is ``engaged in commerce'' within the meaning of the Fair
Labor Standards Act when performing activities as a driver, driver's
helper, loader, or mechanic, where these activities are sufficient in
other respects to bring him within the exemption. (Hager v. Brinks, Inc.
(N.D. Ill.), 11 Labor Cases, par. 63,296, 6 W.H. Cases 262; Earle v.
Brinks, Inc., 54 F. Supp. 676 (S.D. N.Y.); Thompson v. Daugherty, 40 F.
Supp. 279 (D. Md.). See also, Walling v. Villaume Box & Lbr. Co., 58 F.
Supp. 150 (D. Minn.). And see in this connection paragraph (b) of this
section and Sec. 782.8.) To illustrate, employees of construction
contractors are, within the meaning of the Fair Labor Standards Act,
engaged in commerce where they operate or repair motor vehicles used in
the maintenance, repair, or reconstruction of instrumentalities of
interstate commerce (for example, highways over which goods and persons
regularly move in interstate commerce). (Walling v. Craig, 53 F. Supp.
479 (D. Minn). See also Engbretson v. E. J. Albrecht Co., 150 F. (2d)
602 (C.A. 7); Overstreet v. North Shore Corp., 318 U.S. 125; Pedersen v.
J. F. Fitzgerald Constr. Co., 318 U.S. 740, 742.) Employees so engaged
are not, however, brought within the exemption merely by reason of that
fact. In order for the exemption to apply, their activities, so far as
interstate commerce is concerned, must relate directly to the
transportation of materials moving in interstate or foreign commerce
within the meaning of the Motor Carrier Act. Asphalt distributor-
operators, although not exempt by reason of their work in applying the
asphalt to the highways, are within the exemption where they transport
to the road site
asphalt moving in interstate commerce. See Richardson v. James Gibbons
Co., 132 F. (2d) 627 (C.A. 4), affirmed 319 U.S. 44 (and see reference
to this case in footnote 18 of Levinson v. Spector Motor Service, 330
U.S. 649); Walling v. Craig, 53 F. Supp. 479 (D. Minn.).
(b)(1) Highway transportation by motor vehicle from one State to
another, in the course of which the vehicles cross the State line,
clearly constitutes interstate commerce under both acts. Employees of a
carrier so engaged, whose duties directly affect the safety of operation
of such vehicles, are within the exemption in accordance with principles
previously stated. (Southland Gasoline Co. v. Bayley, 319 U.S. 44;
Plunkett v. Abraham Bros., 129 F. (2d) 419 (C.A. 6); Vannoy v. Swift &
Co. (Mo. Sup. Ct.), 201 S.W. (2d) 350; Nelson v. Allison & Co. (E.D.
Tenn.), 13 Labor Cases, par. 64,021; Reynolds v. Rogers Cartage Co.
(W.D. Ky.), 13 Labor Cases, par. 63,978, reversed on other grounds 166
F. (2d) 317 (C.A. 6); Walling v. McGinley Co. (E.D. Tenn.), 12 Labor
Cases, par. 63,731; Walling v. A. H. Phillips, Inc., 50 F. Supp. 749,
affirmed (C.A. 1) 144 F. (2d) 102,324 U.S. 490. See Secs. 782.2 through
782.8.) The result is no different where the vehicles do not actually
cross State lines but operate solely within a single State, if what is
being transported is actually moving in interstate commerce within the
meaning of both acts; the fact that other carriers transport it out of
or into the State is not material. (Morris v. McComb, 68 S. Ct. 131;
Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695; Walling v. Silver
Bros. Co. 136 F. (2d) 168 (C.A. 1); Walling v. Mutual Wholesale Food &
Supply Co., 141 F. (2d) 331 (C.A. 8); Dallum v. Farmers Cooperative
Trucking Assn., 46 F. Supp. 785 (D. Minn.); Gavril v. Kraft Cheese Co.,
42 F. Supp. 702 (N.D. Ill.); Keegan v. Rupport (S.D. N.Y.), 7 Labor
Cases, par. 61,726, 3 W.H. Cases 412; Baker v. Sharpless Hendler Ice
Cream Co. (E.D. Pa.), 10 Labor Cases, par. 62,956, 5 W.H. Cases 926).
Transportation within a single State is in interstate commerce within
the meaning of the Fair Labor Standards Act where it forms a part of a
``practical continuity of movement'' across State lines from the point
of origin to the point of destination. (Walling v. Jacksonville Paper
Co., 317 U.S. 564; Walling v. Mutual Wholesale Food & Supply Co., 141 F.
(2d) 331 (C.A. 8); Walling v. American Stores Co., 133 F. (2d) 840 (C.A.
3); Baker v. Sharpless Hendler Ice Cream Co. (E.D. Pa.), 10 Labor Cases,
par. 62,956 5 W.H. Cases 926) Since the interstate commerce regulated
under the two acts is not identical (see paragraph (a) of this section),
such transportation may or may not be considered also a movement in
interstate commerce within the meaning of the Motor Carrier Act.
Decisions of the Interstate Commerce Commission prior to 1966 seemingly
have limited the scope of the Motor Carrier Act more narrowly than the
courts have construed the Fair Labor Standards Act. (see Sec. 782.8.) It
is deemed necessary, however, as an enforcement policy only and without
prejudice to any rights of employees under section 16 (b) of the Act, to
assume that such a movement in interstate commerce under the Fair Labor
Standards Act is also a movement in interstate commerce under the Motor
Carrier Act, except in those situations where the Commission has held or
the Secretary of Transportation or the courts hold otherwise. (See
Sec. 782.8(a); and compare Beggs v. Kroger Co., 167 F. (2d) 700, with
the Interstate Commerce Commission's holding in Ex parte No. MC-48, 71
M.C.C. 17, discussed in paragraph (b)(2) of this section.) Under this
enforcement policy it will ordinarily be assumed by the Administrator
that the interstate commerce requirements of the section 13(b)(1)
exemption are satisfied where it appears that a motor carrier employee
is engaged as a driver, driver's helper, loader, or mechanic in
transportation by motor vehicle which, although confined to a single
State, is a part of an interstate movement of the goods or persons being
thus transported so as to constitute interstate commerce within the
meaning of the Fair Labor Standards Act. This policy does not extend to
drivers, driver's helpers, loaders, or mechanics whose transportation
activities are ``in commerce'' or ``in the production of goods for
commerce'' within the meaning of the act but are not a part of an
interstate movement of the goods or persons carried (see, e.g., Wirtz v.
Crystal Lake Crushed Stone Co., 327 F. 2d 455
(C.A. 7)). Where, however, it has been authoritatively held that
transportation of a particular character within a single State is not in
interstate commerce as defined in the Motor Carrier Act (as has been
done with respect to certain transportation of petroleum products from a
terminal within a State to other points within the same State--see
paragraph (b)(2) of this section), there is no basis for an exemption
under section 13(b)(1), even though the facts may establish a
``practical continuity of movement'' from out-of-State sources through
such in-State trip so as to make the trip one in interstate commerce
under the Fair Labor Standards Act. Of course, engagement in local
transportation which is entirely in intrastate commerce provides no
basis for exempting a motor carrier employee. (Kline v. Wirtz, 373 F. 2d
281 (C.A. 5). See also paragraph (b) of this section.)
(2) The Interstate Commerce Commission held that transportation
confined to points in a single State from a storage terminal of
commodities which have had a prior movement by rail, pipeline, motor, or
water from an origin in a different State is not in interstate or
foreign commerce within the meaning of part II of the Interstate
Commerce Act if the shipper has no fixed and persisting transportation
intent beyond the terminal storage point at the time of shipment. See Ex
parte No. MC-48 (71 M.C.C. 17, 29). The Commission specifically ruled
that there is not fixed and persisting intent where: (i) At the time of
shipment there is no specific order being filled for a specific quantity
of a given product to be moved through to a specific destination beyond
the terminal storage, and (ii) the terminal storage is a distribution
point or local marketing facility from which specific amounts of the
product are sold or allocated, and (iii) transportation in the
furtherance of this distribution within the single State is specifically
arranged only after sale or allocation from storage. In Baird v. Wagoner
Transportation Co., 425 F. (2d) 407 (C.A. 6), the court found each of
these factors to be present and held the intrastate transportation
activities were not ``in interstate commerce'' within the meaning of the
Motor Carrier Act and denied the section 13(b)(1) exemption. While ex
parte No. MC-48 deals with petroleum and petroleum products, the
decision indicates that the same reasoning applies to general
commodities moving interstate into a warehouse for distribution (71
M.C.C. at 27). Accordingly, employees engaged in such transportation are
not subject to the Motor Carrier Act and therefore not within the
section 13(b)(1) exemption. They may, however, be engaged in commerce
within the meaning of the Fair Labor Standards Act. (See in this
connection, Mid-Continent Petroleum Corp. v. Keen, 157 F. 2d 310 (C.A.
8); DeLoach v. Crowley's Inc., 128 F. 2d 378 (C.A. 5); Walling v.
Jacksonville Paper Co., 69 F. Supp. 599, affirmed 167 F. 2d 448,
reversed on another point in 336 U.S. 187; and Standard Oil Co. v. Trade
Commission, 340 U.S. 231, 238).
(c) The wage and hours provisions of the Fair Labor Standards Act
are applicable not only to employees engaged in commerce, as defined in
the act, but also to employees engaged in the production of goods for
commerce. Employees engaged in the ``production'' of goods are defined
by the act as including those engaged in ``handling, transporting, or in
any other manner working on such goods, or in closely related process or
occupation directly essential to the production thereof, in any State.''
(Fair Labor Standards Act, sec. 3(j), 29 U.S.C., sec. 203(j), as amended
by the Fair Labor Standards Amendments of 1949, 63 Stat. 910. See also
the Division's Interpretative Bulletin, part 776 of this chapter on
general coverage of the wage and hours provisions of the act.) Where
transportation of persons or property by motor vehicle between places
within a State falls within this definition, and is not transportation
in interstate or foreign commerce within the meaning of the Motor
Carrier Act because movement from points out of the State has ended or
because movement to points out of the State has not yet begun, the
employees engaged in connection with such transportation (this applies
to employees of common, contract, and private carriers) are covered by
the wage and hours provisions of the Fair Labor Standards Act and are
not subject to the jurisdiction of
the Secretary of Transportation. Examples are: (1) Drivers transporting
goods in and about a plant producing goods for commerce; (2) chauffeurs
or drivers of company cars or buses transporting officers or employees
from place to place in the course of their employment in an
establishment which produces goods for commerces; (3) drivers who
transport goods from a producer's plant to the plant of a processor,
who, in turn, sells goods in interstate commerce, the first producer's
goods being a part or ingredient of the second producer's goods; (4)
drivers transporting goods between a factory and the plant of an
independent contractor who performs operations on the goods, after which
they are returned to the factory which further processes the goods for
commerce; and (5) drivers transporting goods such as machinery or tools
and dies, for example, to be used or consumed in the production of other
goods for commerce. These and other employees engaged in connection with
the transportation within a State of persons or property by motor
vehicle who are subject to the Fair Labor Standards Act because engaged
in the production of goods for commerce and who are not subject to the
Motor Carrier Act because not engaged in interstate or foreign commerce
within the meaning of that act, are not within the exemption provided by
section 13(b)(1). (Walling v. Comet Carriers, 151 F. (2d) 107 (C.A. 2);
Griffin Cartage Co. v. Walling, 153 F. (2d) 587 (C.A. 6); Walling v.
Morris, 155 F. (2d) 832 (C.A. 6), reversed on other grounds in Morris v.
McComb, 332 U.S. 422; West Kentucky Coal Co. v. Walling, 153 F. (2d) 582
(C.A. 6); Hamlet Ice Co. v. Fleming, 127 F. (2d) 165 (C.A. 4); Atlantic
Co. v. Walling, 131 F. (2d) 518 (C.A. 5); Chapman v. Home Ice Co., 136
F. (2d) 353 (C.A. 6); Walling v. Griffin Cartage Co., 62 F. Supp. 396
(E.D. Mich.), affirmed 153 F. (2d) 587 (C.A. 6); Dallum v. Farmers Coop.
Trucking Assn., 46 F. Supp. 785 (D. Minn.); Walling v. Villaume Box &
Lbr. Co., 58 F. Supp. 150 (D. Minn); Walling v. DeSoto Creamery &
Produce Co., 51 F. Supp. 938 (D. Minn.); Reynolds v. Rogers Cargate Co.,
71 F. Supp. 870 (W.D. Ky.), reversed on other grounds 166 F. (2d) 317
(C.A. 6), Hansen v. Salinas Valley Ice Co. (Cal. App.), 144 P. (2d)
896).
