49 F. Supp. 2 | S.D. Ga. | 1943
Asserting that they were not paid the minimum wages and over-time compensation required by sections 6 and 7 of the Fair Labor Standards Act of 1938,
The defendant, owning and operating a fleet of trucks and admittedly engaged in interstate commerce, answers that he paid full wages under section 6 for time actually worked, and as to over-time compensation he sets up in his answer that the employees suing, because they are employees with respect to whom the Interstate Commerce Commission has power to establish maximum hours of service pursuant to the provisions of the Motor Carriers Act of 1935, now part II of the Interstate Commerce Act as amended in 1940,
The case was tried to the court without a jury. My findings and conclusions follow.
Facts.
The plaintiffs are “drivers” of trucks, or “drivers’ helpers” or “loaders”, who crate, pack, assemble and load or unload the commodities transported by the trucks. They
Discussion.
1. Plaintiffs come within the over-time compensation provisions of section 7 of the Fair Labor Standards Act unless they were of the class of employees expressly exempted by section 13(b), which reads: “The provisions of Section 7 [section 207 of this title] shall not apply with respect to (1) any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49”.
Title 49, Secs. 304(a) (1) and (2) provide: “It shall be the duty of the Commission — -To regulate common carriers [and contract carriers] by motor vehicle as provided in this chapter, and to that end the Commission may establish reasonable requirements with respect to * * * qualifications and maximum hours of service of employees, and safety of operation and equipment.”
Though literally the language of the Motor Carriers Act as amended just quoted is broad enough to include all employees of common and contract carriers (and similar language as to private carriers is equally broad), the word “employees” has been interpreted to mean “those employees whose activities affect the safety of operation” of the vehicles used in transportation. United States v. American Trucking Ass’n, 310 U. S. 534, at page 553, 60 S.Ct. 1059, 84 L.Ed. 1345.
It is contended here that as to “drivers” until October 15, 1940, and as to “loaders, drivers’ helpers” until March 4, 1941, -the Commission had not declared them within the class of employees affecting safety of operation.
The Commission has always regarded drivers as subject to their jurisdiction, and no one can deny they are responsible for the safe operation of the vehicles they control. See Maximum Hours of Service of Motor Carrier Employees, 11 M.C.C. 203 and Motor Carrier Safety Regulations — Private Carriers, 23 M.C.C. 1. Loaders and Driv
It will be observed the exemption is based upon the "power to establish” by the Commission and not by its exercise. It is the existence of the power — not the exercise of it — which gives the exemption, if we give the words of the statute their ordinary meaning.
2. We come next to consider the claim that minimum wages have not been paid.
The burden is on the plaintiffs to establish by a preponderance of the evidence the number of hours worked and the amount of wages due; and the evidence to sustain this burden must be definite and certain.
It is urged upon me that the defendant admitted that the plaintiffs worked upon an average of 45 to 50 hours each week, and by accepting that average and applying the applicable minimum wage during the several years in controversy, the payments shown to have been made constitute underpayments. I did not understand defendant to so testify. But even if he had, the Circuit Court of Appeals for this Circuit has rejected the “average hours” basis for computing wages. See Jax Beer Co. case cited in note 7, particularly at page 175 of 124 F.2d. The court there said, notwithstanding each employee testified that “on an average” he worked from seven o’clock in the morning to nine o’clock at night: “To uphold the * * * judgment [for employees] we must base decision upon the guess, speculation, and averages made up from the uncertain recollections of these appellees. This we refuse to do”. I do likewise.
1. Plaintiffs are within the classification made exempt by section 13(b) from the provisions of section 7 of the Fair Labor Standards Act of 1938, and are not entitled to recover over-time compensation.
2. They are not entitled to recover any amount under section 6 of the Act for failure to pay the minimum wages prescribed.
Let the judgment be for defendant.
52 Stat. 1060 et seq., 29 U.S.C.A. §§ 206, 207.
54 Stat. 919, 49 U.S.C.A. §§ 301, 304.
52 Stat. 1067, 29 U.S.C.A. § 213(b).
Ex parte MC-3, MC-2, 3 M.C.C. 665, 3 M.C.C. 557. See, however, orders of Jan. 27, Feb. 8, May 27, 1939, MC-2, MC-4, and Motor Carriers Safety Regulations (Rev.) of Interstate Commerce Commission, including orders issued through November 4,1940.
For contrary view, see Interpretative Bulletin No. 9 (April 11, 1941) U. S. Department of Labor, Wages and Hour Division, Office of Administrator.
West v. Smoky Mountain Stages, D. C., 40 F.Supp. 296, 298-99; Bechtel v. Stillwater Milling Co., D.C., 33 F.Supp. 1010, 1013-14; Magann v. Long’s B. T. Corp., D.C., 39 F.Supp. 742; Robbins v. Zabarsky, D.C., 44 F.Supp. 867, 868(8), 870; Wolfe v. Union T. & S. Co. (D.C.Ky.) unreported, decided Feb. 27, 1942; Bayley v. Southland Gasoline Co., 131 F.2d 412, certiorari granted, 63 S.Ct. 526, 87 L.Ed. —.
Super-Cold Southwest Co. v. McBride, 5 Cir., 124 F.2d 90, 92; Jax Beer Co. v. Redfern, 5 Cir., 124 F.2d 172, 175; Johnson v. Dierks Lbr. & Coal Co., 8 Cir., 130 F.2d 115, 116(7), 118.