*1 type shelter was providing But the act relationship petitioner's naturally arise out of might very nature, By its son, recognizes. as the Court even That is true it is a act. therefore, non-treasonous surrounding cir- of all the act is viewed light when the problem All can is that the be said cumstances. or non-treasonous it was motivated treasonous whether an overt in doubt. is therefore not factors is left might treason, of how unlawful regardless act of be. otherwise SERVICE. v. MOTOR
LEVINSON SPECTOR 21, 22, 1946. Argued Reargued October 22. 1945. December March Decided
Harry L. argued Yale the cause petitioner. for With him on the brief was Richard S. Folsom.
David Axelrod argued the cause respondent on the original argument and Roland Rice on the reargument. With them on the briefs Harry were J. Lurie and Maurice P. Golden. Peter T. Beardsley was also on the brief on the reargument. cause Bay argued Court, Jeter S. special leave of
By Division, Hour Wage for the Administrator curiae, on Department Labor, amicus United States was S. brief William him on the reargument. With Tyson. argued W. Knowlton special Court, leave of Daniel
By for the Interstate Commerce and filed a brief cause curiae, reargument. on the Commission, as amicus opinion delivered *3 Mr. Justice Burton Court. the Interstate presents question
This whether case of § 204 power, Commerce Commission has the under 1935,1 qualifications establish and Act, Motor Carrier to respect any “checker” maximum hours of service with part or of whose activi foreman,” “terminal substantial immediately of or capacity doing, ties consists parts of 204 The material are: (a) duty It shall be the of the Commission— “Sec.
"(1) provided in regulate by common carriers motor vehicle as To may reasonable part, this to that end the Commission establish and adequate service, requirements trans- with to continuous and accounts, express, systems rec- portation baggage of uniform of and ords, qualifications maximum reports, preservation records, and and of safety equipment. employees, operation and and hours service of of of “(2) regulate by provided in To contract carriers motor vehicle as may reasonable part, this and to that end the Commission establish records, requirements systems accounts, respect to of uniform records, qualifications reports, preservation and maximum and employees, operation equipment. and and hours service vehicle, “(3) property motor To establish for carriers of requirements promote found, if need therefor is reasonable operation, prescribe hours and to that end maximum (Italics equipment. . employees, and . .” service standards (3). (a) (2) supplied.) 546, 49 (1), U. C. 304 49 Stat. S. freight more directing, the work of one or “loaders” of work is defined an interstate motor carrier as such class Ex parte the Interstate Commerce Commission MC-2, 133-134,2 although of his 28 M. C. C. the rest affect operation activities do not such motor carrier.3
2“(2) Loaders.— . . . large carriers, particularly important . .
“The . who have those operations terminal, variously employ terminal men from called loaders, dockmen, helpers, loaders, or and hereinafter called whose freight duties are to load unload vehicles and sole motor transfer between motor vehicles and between the vehicles and the warehouse. entirely
“The evidence makes it clear that a motor vehicle must safely operated properly highways be be loaded to on of the country. weight placed If more is on one side of than the vehicle on other, tip tendency rounding is a If there when curves. more weight placed vehicle, tendency rear is tois raise operation Further, the front and make wheels safe difficult. is nec- essary properly load be distributed over the axles motor vehicle.
“Proper loading only necessary heavy machinery, steel, is not when being transported, and other like importance commodities are but is of package freight packing when normal is handled. If several cases weighing pounds from 150 to 200 on are loaded one side aof motor thereof, lighter freight vehicle or at one end on the other side or end, great at other safe majority, difficult. The if all, operations of the carriers whose are *4 of sufficient size char justify employment acter to the freight loaders handle such weight proper loading necessary.” parte MC-2, is Ex 28 125, 133-134. M. C. C. 3Throughout recognized this it case has been that was within power the of the Commission to establish the and maxi- regular mum hours of service for the who “loaders” served under petitioner. the immediate direction of the No claim has been made on their behalf to the benefits of 7 of the Fair Labor Standards § present controversy Act. The peti- is limited the to status of the tioner throughout himself. His status is opinion referred this as “partial-duty that of a loader,” except he where is referred to designation his own of himself as a “checker” or “terminal foreman.” The “partial-duty term preference loader” is in “part- used to that of
653 and that power Commission has We hold that the 4Act therefore Fair Labor (b) (1) 13 Standards § right the from a employee expressly excludes such prescribed 7 pay for overtime service increased that Act.5 brought Municipal the Chi
In this Court of action, 16 Labor Standards (b) of the Fair cago, pursuant §to judgment against his em- Act,6 petitioner the recovered loader,” implication spent in certain time so to avoid that time activities, activities, rather the character of those is to be than subject deciding factor in whether not the individual is conclusive or Commission. to the 4 . “Sec. 13. . . respect (1)
“(b) provisions apply 7 The of section shall not with any employee Com- to whom the Interstate Commerce qualifications and hours of mission has to establish maximum pursuant provisions to the 204 of the Motor Car- service section 1935; 1068, (b) (1). Act, rier . .” 52 29 S. C. 213 . . Stat. U. 5 (a) provided in employer shall, except as No otherwise “Sec. section, employ any employees engaged this who commerce production goods inor for commerce— “(1) during longer forty-four than first for a workweek hours year section, from effective date of this
“(2) during longer forty-two for a workweek than hours the second year date, from such or “ (3) longer expiration of forty for a workweek than hours after year date, the second from such compensation employment in employee for his
unless such receives specified excess of the above at than one one- hours a rate less regular employed.” half rate 52 times at which he is Stat. (a). C. U. S. 207§ 16. . . . “Sec.
“(b) Any employer provisions who violates . . of . section employee Act shall liable in the this be to the or affected unpaid . compensation, amount of . . . their . . an overtime equal liquidated damages. additional amount as . . . court shall, any judgment plaintiff such action in addition to awarded to the plaintiffs, paid by attorney’s fee be allow reasonable defendant, C. and costs of the action.” 52 Stat. S.U. (b). § 216
654 unpaid $487.44 for for overtime ployer, respondent, the services, as a “checker” or compensation petitioner’s for § with 7 of foreman,” computed “terminal accordance as addition, judgment $487.44, that Act. In the included making $175 liquidated damages, attorney’s fee, an that, $1,149.88 a total of and costs. The defense was (b) (1), apply 7 under the did provisions petitioner’s judgment the service. On that the ground, was reversed the and the Appellate Court Illinois judgment, cause remanded with directions to enter for costs, respondent. 505, the 323 Ill. E. 2d App. N. Supreme 142. The Court of affirmed. 389 Ill. Illinois 466, N. E. 2d granted 817. We certiorari because of importance the the question interpreting the Motor Carrier Act Fair Labor Act. 326 S. 703. Standards U. argued was at the Court Term, October this 1945, and, January 2, on was restored to the docket reargument a full bench at before this Term. It was so argued on October In addition arguments briefs and on behalf of parties, we have had the benefit presented, of those at our request, on behalf amici curiae. These from were Administrator Wage and Hour Division, Department United States Labor, who supported position petitioner, and, on the hand, other from the Interstate Commerce Com mission which claimed that it possessed, under the Motor Carrier Act, power to establish qualifications and max imum hours of service with respect petitioner. to the The Solicitor General, also our request, at filed memoran dum. In supported it he petition for certiorari and took what he has “a described as position somewhat be tween that of the Commission and that of Wage Hour Administrator.” respondent is a Missouri corporation, licensed in
Illinois, and engaged in interstate commerce as a motor carrier of freight. It does not appear whether the re- *6 or carrier, a common contract carrier spondent is turn does not property. result, however, carrier of The peti The classifications. upon differences between those employed by respondent the from October tioner was in through capacities one more 6, 1941, October or a “checker” or designates generally which he as those of conflicting is “terminal foreman.” While the evidence judg duties, ample his to the as to some of there is sustain Illinois that a Supreme of the Court of on basis ment im doing, of his activities consisted part substantial work or more “loaders” of directing, the of one mediately of work freight for an motor carrier as that class interstate The the Interstate Commerce is defined Commission. Supreme accepted Appellate of Illinois Court’s Court description petitioner’s activities.7 The of the general 2 for the definition of the work See note Commission’s Appellate petitioner’s “loaders.” The Court of Illinois described activities as follows: checker, [petitioner] loader, he and there-
“Plaintiff contends is a interpretation. his fore, not the Commission’s We believe that within position—are given name . . . duties—not the determinative. Street, Chicago, 25th
“Defendant Terminal at West is freight, phases out- of motor carrier business—inbound scene three freight. freight originating freight carrying bound and local Trucks locally foreign States, by gangs of in cities and are unloaded and employees. gang usually 3 or A consists of 4 men—a defendant’s gang’s checker, caller, packer. sorter and The checker directs the supervise operation. Day night and of all the foremen the activities Incoming according its gangs. freight deposited and is unloaded the dock in various sections at the direction of destination on checker; checker, it removed likewise under the direction of is outgoing appropriate on from these sections and loaded trucks. according weight; heavy weighted loaded or 'bottom is to size freight’ part lighter being in the of the truck and distributed lower weighted placed top. This freight’ plan is at the is fol- or 'balloon equipment freight. in interest of and of Testi- lowed plain- mony pertinent that, checker, to the issue on the merits supervised unloading disposition incoming tiff and directed outgoing freight collecting loading freight and and the of the maximum establish Commission such has been “loaders” hours service by a series well-considered defined and delimited jurisdiction, from the of its decisions, dating extension 1935, so as include motor carriers. weight disposition freight loading. he
that watched the testimony plaintiff’s dispute quantity to the arises as *7 says particular these duties. Plaintiff that activities devoted to freight night, at he most of the outbound was handled while worked mostly hours, days; loading during much done his that not was but that, place, charge. his direct whatever took was under The defense testimony freight equally is that inbound and outbound was divided during day—inbound usually during night the the and outbound midnight. 8 a. m. between and part question plaintiff’s . . There is
“. no that some work week supervision loading was devoted to the direction and the inter freight question state motor carriers. There is no that either the gang exempted in loaders were from section 7 Fair Labor of the think, therefore, greater force, plain Standards Act. that with We exemption for, exempt tiff comes within the if the loaders are because they safety operation the manner in which work the affects vehicles, certainly defendant’s plaintiff, motor duties of who planned loading, safety. Considering directed affect purpose Act, of the Motor Carriers we believe that the true deter employee performs any minant is whether an duties which substan tially operation, affect the rather than whether the duties affecting safety Spector Service, are Levinson v. substantial.” Motor App. 507, 505, 508-509, 142, 323 Ill. 2d 143, 56 N. E. Supreme
The Court of Illinois said: question properly think the “We of fact to be determined in this part case is whether not a plaintiff’s substantial work affects operation vehicles, question of motor and that this of fact controls it evidentiary this case. If be from determined facts that plaintiff, part work, a substantial engaged of his was vehicles, cargo thereof, exempted motor or the he would be the Fair Act, from Labor Standards as a matter of law.
.“. . [Appellate] court, under the facts as found the em ployee exemption came loaders, within same dockmen and helpers.” Spector Service, Levinson v. 466, Motor 473-474, 389 Ill. 817, 820. 59 N. E. 2d congressional history development includ- to and commerce, up in interstate
safety program Act Carrier of the Motor ing enactment story. tells Act the Fair Labor Standards had fields, Congress previously prescribed In comparable hours of service limited maximum safety equipment, In requirements.8 of its for violations imposed penalties increases in rates Acts, Congress rely upon those did limitations set for to enforce the overtime service pay requirement of pay While a upon hours of service. regular tends higher than service for overtime service service, it tends permitting from such employers
to deter require seek it. The encourage employees also adapted remedial measure is a pay ment of such increased program social rather of an to the needs economic rigid to the enforcement police regulation adapted than Co. Overnight Motor v. in a required safety program. Missel, U. S. 577-578. safety of regulate attempted had
By 1935, states had estab- vehicle. Some *8 by of carriers motor operation hours of service for qualifications and maximum lished 8 Acts, 2, 1893, 631; Safety Appliance approved 27 The March Stat. April 1910, 298; 2, 1903, 943; 14, and Febru March 32 Stat. 36 Stat. C.—Railroads, ary 28, 499; 45, and 49 1920, 41 see Title U. S. Stat. by 26, C. and are enforced the Interstate U. S. all relate to railroads § Commerce Commission. 1907, Act, approved 4, 1415, Stat.
The Service March 34 Hours of Commission to requires 45 U. S. C. the Interstate Commerce § employees engaged in of service for railroad enforce maximum hours operators, dispatchers train movement of trains. It includes also having of train movements and others much to do with although riding trains. 4, 1915, Act, 38 Stat. see 46 approved
The Seamen’s March 673, prescribes of at sea and C. maximum hours service U. S. § sailing firemen, engaged in sailors, anchor for oilers and others at managing qualifications for vessels. It establishes seamen and or prescribes requirements, safety equipment sanitary crew and facilities types for certain of vessels.
658 helpers. Increased movements drivers and interstate Act, necessary Carrier motor carriers then made the Motor 1985, approved August II the Interstate 9, 1935, as Part In 49 This in the Act, Commerce Stat. 543. Act vested reason terstate Commerce to establish Commission maxi qualifications and requirements able employees hours and mum of service of equipment of common and contract carriers motor (a) (1) (2). Similar, identical, vehicle. 204 but not § language property was used as to carriers of (a) (3). super expressly motor vehicle. 204 Act § “any competition for em any industry seded code fair . bracing (b). motor . . .” Section carriers (b) many types listed which motor carriers were exempted in but general sig from the Act that Section nificantly applied provisions to all of 204 of them the to qualifications, service, maximum hours of safety of operation and equipment.9 . . . “Sec. “(b) Nothing part, except in this provisions section rela- tive to maximum hours service operation or equipment standards shall be construed to (1) employed include solely motor transporting vehicles school school;
children and teachers (2) to or from taxicabs, or other or performing motor vehicles service, a bona having fide taxicab a ca- pacity passengers of not than regular more six operated and not on a termini; route or (3) between fixed or motor vehicles owned or operated by or on behalf of exclusively hotels and used trans- portation patrons of hotel between hotels local other railroad or stations; (4) common carrier operated, or motor vehicles au- under thorization, regulation, and Secretary control of the Interior, principally purpose transporting for the persons in and about the parks national monuments; (4a) and national motor con- vehicles *9 operated by any farmer, trolled and transportation in and used the of agricultural products thereof, transpor- commodities and inor the supplies farm; (4b) tation of to his or motor vehicles controlled and operated by cooperative a Agricultural association as defined in the Marketing Act, approved 15, amended; 1929, (5) trolley June as or operated by busses power electric from wire, derived a fixed overhead years in several significant 1942, that more is even 1938, Act of the Fair Labor Standards after enactment of the Congress slightly, expressly, expanded but of subjects qualifications, over these of Commission operation equip and service, of of maximum hours degree, the corresponding ment to a thereby restricted, and provisions of the compulsory overtime application Fair Act.10 Labor Standards street-railway passenger transportation
furnishing local similar to livestock, service; (6) exclusively carrying in used or motor vehicles (not including (including fish), agricultural fish shell or commodities (7) products thereof); exclu- or motor vehicles used manufactured sively newspapers; nor, of to extent in the distribution unless and applica- find shall time time that such the Commission from to necessary carry policy Congress in is of enunciated tion to out except provisions 202, provisions part, section shall the of this of and maximum hows service section relative of equipment apply or and standards (8) transportation passengers property in or to: or interstate foreign wholly municipality contigu- a or between commerce within adjacent commercially municipalities a ous or within a zone municipality municipalities, except part of such or when such management, arrange- transportation control, or under a common shipment point carriage ment or or with- for a continuous from zone, municipality, municipalities, provided such or that the out transportation passengers regu- engaged in such motor carrier over lawfully irregular also lar or route or routes interstate commerce is engaged passengers transportation in the- over entire intrastate length such interstate route or in accordance the laws routes (9) having jurisdiction; casual, occasional, re- of each or or State transportation passengers ciprocal property or or interstate foreign compensation any person engaged in commerce for transportation by occupation regular motor vehicle as a business.” (Italics (b). supplied.) 545, 49 Stat. 49 U. S. C. 303§ (c) A new 202 was inserted the Motor Carrier Act Transportation Act Stat. exclude so from pickup delivery Motor Carrier Act certain motor vehicle serv automatically put ice within certain terminal areas. This exclusión engaged service, employees, beyond who were qualifica the Interstate Commerce Commission to establish their tions maximum hours service under of the Motor § 204
660 Trucking v.
In this in United States Amer. 1940, Court, Assns., 534, recognized emphasis given by 310 S. U. Congress to the and maximum “qualifications clause hours of service” in (a) (b). §§ 204 and 203 That decision re legislative history viewed the of the Act and held “that the meaning employees (1) in 204 (a) (2) § and is limited safety to those activities affect the employees whose operation. no regu Commission has to the qualifications late hours of service others.” at Id. 553. The opinion employees dealt with who de exclusively respective assign voted themselves to their ments, such as those drivers or of on the one hand clerks (a) (1) on the other. It 204 (2) § demonstrated that and related to It the former but not to the latter.11 did not discuss employees who, its relation to as in present case, required are to divide their activities between those affecting operation affecting those it. Wage Carrier Act. The Division, Administrator of the and Hour Department Labor, regarded United thereupon States some of them entitled to the benefits 7 of the Fair Labor Standards Act as § compulsory pay. However, (c) overtime when this new 202 was § May 16, 1942, 300, amended the Act of 56 Supp. Stat. 49 S. C. U. V, (c), freight Congress forwarders, include also added to it § general provisions clause to the effect that “the of section 204 rela tive employees and maximum hours of service of equipment” apply exempted should to the operations. express recognition by This amendment was an Con gress qualifica need for control Commission over the tions employees maximum hours of service of these the inter public safety, although provision ests its for that control automati cally deprived recently acquired private those of their rights higher pay overtime under 7 the Fair Labor Standards § Act. 11 Overnight Missel, In employee Motor Co. v. S. an U. who served an performed interstate motor carrier as a rate clerk and other incidental duties, none opera- of which were connected tion, given judgment was prescribed compensation for the overtime by 7 of the Fair Labor Standards Act. Court this Bayley,
In 319 U. S. Southland Co. v. car- of a applied reasoning employee to an similar (a) (3). recognized rier of property under *11 and, a for its action to find need power Commission’s maximum and having qualifications toit, found establish carriers motor employees private hours of service for of car- of such property affecting operation of the of of Fair Labor that, (b) (1) It the § riers. held under of that Act, possession the mere Standards Commission’s all necessarily excluded power, not, whether exercised or existed, from power whom the employees, with of provisions § the compulsory the benefits of overtime a comparable that The involves present of Act. case found here it situation in that the has Commission maximum qualifications has the establish for doing work of loaders hours of for those the service car- motor common or contract motor carriers advisable, yet, as riers of but it has not found property, of service to establish and maximum hours for that work. logic Congress, primary the of situation is that as
consideration, preserved safety program has intact the which it and the Interstate Commission have Commerce do developing this, been since 1936. To motor carriers Congress jurisdic- of prohibited overlapping has the the of Wage Division, tion the and Hour Administrator the In- Department Labor, United with that of States hours of terstate Commerce to maximum Commission as might Congress might service. have otherwise. done permitted There apply. have both is no neces- Acts rigid sary inconsistency enforcing between maximum hours of for safety purposes time, service and at the same compliance within with limitations, requiring those the pay increased rates for overtime work done excess in 7 limits set Fair Labor Standards Act. Such Cong been has not authorized overlapping, however, give us to full effect to it remains for ress primary impor Congress to which attached program has tance, by Congress exclusion corresponding even to compulsory certain from the benefits of the Act. provisions of Fair Standards pay overtime Labor of Motor point When examined from the view the Car its alone, meaning rier Act much light thrown on 204 by interpretation given applications to it and it by made of the Interstate Commission. Commerce The reports regulations Commission, issued authority under II Part of the Interstate Commerce Act, both before and after the enactment of the Fair Labor Act, deal thoroughly expertly Standards so transportation motor interstate *12 to entitle them to in- especially significant weight the terpretation Act, of this of enforcement which has by been committed Congress solely to that Commission. The principal reports regulations and of the Com mission, bearing upon present controversy, are following: 27, See note infra. 13Shortly after effective, the Act became Commission, its on motion, parte own instituted the proceedings Ex listed below. These many hearings, resulted in reports examiners’ and divisional and Com- reports thoroughly mission comprehensively covering and the sub- jects investigated. comparable investigations Further by directed Safety of Section of the Bureau of Motor Carriers the Inter- state Commerce pending. Commission are One of these to deter- what, any, mine if and maximum hours of service should by be established mechanics, helpers. Commission for loaders and parte MC-2, Ex July 30, No. Order 1936. This related to maxi mum employees engaged hours service of in motor carrier trans portation regulations and to pursuant as to such hours of service (a) (2) (1), (3). 665, 3See M. C. C. § 204 666. It dealt with drivers for common and contract holding carriers. led mechanics, helpers loaders and are within the of the Com- Ex parte No. MC-4 1 M. 1. C. C. 23, 1936. December common interstate, drivers of qualifications for established long-term outlined vehicle, motor carriers or contract oper regulations as and issued program III and IV I, II, constituting Parts, equipment, ation and safety regulations. carrier of motor Ex No. parte M. 665. 1937. 3 C. C. 29,
December drivers MC-2 established maximum hours of service motor common or contract carriers interstate, regulations. Part V of such vehicles, No. parte M. C. C. 162. Ex July 9, 1938. 8 MC-4 regulations safety glass. Part III as to modified of such MC-2, parte Ex No. 12, 1938. 6 M. C. C. 557. July modified Part V of the light experience, of current maximum of service for such regulations as to hours drivers. parte Ex No. 10 M. C. 533.
December 1938. C. adapted general qualifications the Commission’s MC-4 carriers which were ex- regulations types to those affecting safety of motor carrier mission because of their activities transportation. 28 M. C. 125. C. MC-3, July 30, 1936, 23, 1936, parte December
Ex No. Orders qualifications, hours July 12, related maximum 1938. This equipment employees, service of property by motor 23 M. C. C. and see carriers vehicle. 1, 16. M. C. C. parte MC-4, August 21, This related to Ex Order of *13 qualifications safety operation equipment employees, of of of especially with drivers. common and contract motor carriers. It dealt 1 M. C. C. 1. parte MC-28, 2, 1938. This related
Ex No. Order of November jurisdiction qualifi- over the establishment of to of the Commission employees common, cations and maximum hours service con- (a). private property under 204 tract and carriers of motor vehicle § safety jurisdiction employees affecting The decision limited such to operation by motor vehicles. 13 M. C. C. 481. proceedings in the this results of these are summarized text of opinion in the order which such results have been announced. (b), but by Act §203 Motor Carrier
empted from the Com- subject had to which remained maximum to 204, as mission, under safety operation of employees, hours of service equipment. No. parte Ex 1939. 11 M. C. C.
January to maxi- MC-2 further modified regulations Part V of as contract mum for common and hours of service of drivers by motor carriers vehicle. parte Ex MC-28
May 9, 1939. 13 M. C. C. 481. authority interpreted (a) the Commission giving as prescribe qualifications to and maximum hours of service employees private contract and carriers of common, property only motor vehicle those whose activities affected said: operation. experience necessarily “Our and the we study made in connection with the administration of the Motor Carrier Act us to qualify prescribe regulations such e., promote as to drivers], operation. [i. Quite the would if contrary be true we were called upon prescribe general qualifications for all employees of such carriers.” Id. at 485. Clerks, salesmen and being executives were named as not within jurisdiction. the Commission’s Referring further to its prescribe qualifications and maximum hours of service with respect to others, drivers and Commission said:
“That power undoubtedly extends to drivers such vehicles. It may well be that the activities of some employees other than drivers likewise affect of operation of motor engaged vehicles in interstate and foreign commerce. If common and contract car- riers, or carriers of property, or their em- ployees believe activities of employees other than drivers affect the safety of motor
665 commerce, foreign in interstate engaged vehicles asking petition, may appropriate file an they Id. determined.” question hearing be held and at 488. parte Ex No. 669. 1939. 14 M. C. C.
May 27, MC-4. were Revised,” Regulations, Safety “Motor Carrier to requirements to be “reasonable found safety of employees and qualifications of sub carriers and contract of common carriers equipment said revised and that Act, 1935, Carrier ject to the Motor prescribed.” adopted, approved, regulations should be provisions as strengthened the Id. at 683. revisions These and contract car for common drivers, to age, ability physical condition, riers, eyesight, as the maximum extended English. They speak read and “exempt for the car regulations to drivers hours of service excepting only those (b), 203§ riers” enumerated farmers.14 (4a) relating subparagraph referred to No. MC-C-189. C. 497. 15, 1939. 16 M. C. June Incor Trucking Associations, petition of Upon American its decision et reaffirmed porated, al., the Commission MC-28, 9, 1939, in Ex No. nega parte and stated May It said that there established. proposition tive side prescribe maximum (a) empower “does not us to carriers whose hours of service for of motor Id. at operation.” activities do not affect the 497. Ex parte MC-8. C. 1.
May 23 M. C. made find- Following extended hearings, the Commission ings important found, required that are First, here. (a) regula- (3), need for Federal “there is promote safety tion of property carriers of operation of motor vehicles used such carriers transportation foreign property interstate or com- 9, supra. See note *15 exceptions, few comparatively
merce.” at 42. With Id. industry trucks, relating such as those to farm trucks and car applied private the Commission then for drivers foreign riers of property by motor vehicle interstate commerce maximum hours of qualifications, the same regulations operation equip service and as to ment previously prescribed, by that had its orders MC-2, supra, Ex parte supra, parte MC-4, Ex No. for Id. at drivers of common and contract carriers. 22, 42. significance present of this action relation to the
case is that, work done considering classes of drivers for motor carriers, the Commission found many only part instances where a of the driver's activities related driving operations affecting safety other transportation. For example, the Commission dealt with drivers of farm (b) (4a) trucks. Section 203 of the Motor Carrier exempts Act farm trucks, for most purposes, provisions from the of that 204 re- Act. Nevertheless, § tains them within the of the Commission with qualifications to the and maximum hours of serv- ice of employees whose activities affect operation of interstate carriers by motor vehicle. The recognized Commission that such drivers many have duties unrelated to those of driving or safety operation; that farm trucks, large to a extent, do public high- not travel ways; the work year-round not a but generally is confined to the harvest season; but that, never- theless, whenever such a truck is being operated in inter- transportation state public on the highway, hazards involved in such operation are comparable to those faced by drivers who devote their entire time to interstate truck driving of all kinds. With appropriate modifications, the Commission thereupon prescribed for drivers of farm trucks and maximum hours of service dif- ferent from, but comparable to, those it prescribed had for in general. contract carrier trucks drivers of common and requirement of its minimum Instead standard requirement age, age it set minimum years weight of farm gross drivers at when the trucks pounds. 10,000 and load did not vehicle combined exceed although approve age It declined to minimum a accepted by had been states. It eliminated the usual some against trans physical It relaxed its rule examinations. portation passengers. requirement It eliminated its keeping showing log trips driver’s a written record stops retained, made each driver. its however, *16 in against driving any restriction more than hours one in and, a day place prohibition against total of more week, than 60 hours on in a duty it limited total hours driving, duties, as from to 50 distinguished other hours No. MC-3, 23 in Ex parte 1, 27-28, 43. a week. M. C.C. comparable Commission industry took action as to It trucks. a recognized, example, bakery that driver- salesman devotes much of his time to selling effort and goods affecting baked rather the safety than activities operation Commission, however, his truck. The did relinquish jurisdiction not over of driver- nor salesmen did it refrain from their regulating driving It modified by providing time. its usual rule if that, “spends driver-salesman more than 50 percent his time selling in and percent than 50 in less such performing loading, duties driving, he unloading,” may per- be mitted to exceed the usual limit of 60 on duty any hours week of 168 hours, provided only consecutive that “his of driving hours limited are to a total more of not than 40 in any such week.” Id. at (recommending see 31 hours). This use percentage Commission of a the driver’s time as a basis for adjustment of his per- missible maximum distinguished hours service is be the suggestion from of the Administrator of the Wage and Hour Division, United States Department of Labor, safety regu over Commission
that the entire whenever, a matter of law must be denied as lations over has devoted an given week, employee 50% although safety, affecting not time to activities working working time to driv the rest of his have devoted may he commerce.15 interstate carrier truck ing a common whenever safety program to the Commission’s is essential engaged in that activities are wherever hazardous carrier, of an motor safety affect interstate qualified do so engage that who in them shall be those affecting and that maximum of service such hours This operation shall be established and enforced. retaining using, means relinquishing, rather than jurisdiction partial-duty Commission’s over drivers and partial-duty loaders, part a substantial whose activities affects the safety of operations, motor carrier interstate although rest of may their activities affect operations. of such Recognizing its potential over others than drivers, the Commission, proceeding, pri- invited vate carriers of property or their employees who “believe the activities of employees other than drivers affect operation of motor engaged vehicles in inter- *17 state foreign or commerce” to institute in proceedings order that the question be determined. Id. at 44. 4,
March 1941. 28 C.M. C. Ex 125, parte Nos. MC-2 and MC-3. In light of the foregoing experience and together hearings, with the decision of in this Court United States v. Amer. Assns., Trucking supra, Commission, in this latest and most informative decision, found that the classes of activities which it defined as those of mechanics, loaders helpers affect the safety of operation of motor vehicles and that, therefore, employees engaging in such Interpretative See 9, Bulletin No. Wage and Division, Hour Office of the Administrator, par. 4 (b), November, 1943, 1944-1945 WH Man. 523; discussed at note infra. subject to the Commission’s of activities are
classes maximum hours their prescribe loaders, related to service, (a).16 As pursuant following findings of fact announced the the Commission significant present are case: which . “Findings . . of fact.— by loaders, defined,17employed
“2. That as above carriers and carriers private common and contract II subject to by part motor vehicle property large part of their Interstate Commerce Act devote a safety directly time to activities which affect foreign in interstate or operation of motor vehicles commerce.
“4. That common and contract employees no by carriers or motor ve property carriers of II hicle, subject to of the Interstate Commerce part Act, other than drivers and those classes of findings covered three of fact preceding [me which chanics, perform loaders and duties helpers], Ex directly operation.” parte affect MC-2, 28 125, 138-139. M. C. C. findings juris- squarely
These of fact are within the They affirmatively that, diction of the Commission. state opinion Commission, the activities of loaders as described the Commission do affect the foreign of motor com- operation vehicles interstate They merce. finding include also a that such loaders large part “devote a of their which di- to activities time rectly affect the of motor vehicles foreign interstate or commerce.” In the absence of basis, discussion or classification, on a time several 2, supra, See note for the Commission’s definition of the work of *18 loaders. 17Ibid. this Commission, by loaders described
activities of way saying another finding amounts to additional safety activities affect such loader’s large part a of the it uses indicate that nothing There is operation. representative than as element of time other which the loader during all of continuing period work loader. job as a activities of devoting himself to the char- finding a as to the therefore, merely to amounts, It in accord- loaders, the activities of large part acter of a proceed- main of the Commission’s purpose ance with the extent, any, if determine to what ing which was to operation. activities of loaders affect from finding, however, is material This additional recognizes tacitly that even point another of view. which engage some activities full-duty may a loader “non-safety” Such operation. do not affect “large of the load- may up part” activities make another larger an They may er’s total activities. constitute even safety-affecting than his activities. part of his activities In present that, case it was shown the courts below checking, etc., addition to his activities in clerical part” petitioner’s “substantial activities consisted very kind of activities a loader which the Com- directly oper- mission has described as affecting suggested significance ation. If it be should be “large” attached to the Commission’s use of the word rather than the lower courts’ use of the word “substantial” connection, significance this disappears completely such when is seen that the Commission itself substitutes “large” the word “substantial” for the word in its conclu- of law which is quoted sion below.
While the “large” indefiniteness of the terms or “sub- stantial” is obvious, nevertheless, those are words which dealing the Commission has chosen use in subject. this Arbitrary or lines of distinction do sharp *19 not lend readily themselves that extra mar- supplying gin security which in safety engineering. is natural fundamental test is simply employee’s activities safety operation. affect prescribed This is the test by Trucking this Court United States v. Amer. Assns., supra. incapable The verb “affect” itself exact measurement. Furthermore, dealing we are here not with the final application power of the Com- mission, but rather with the limits of its discretionary power to establish qualifications and maximum hours of service when and by where deemed it to be needed. In issuing its regulations, Commission itself can supply whatever require. definiteness occasion shall From point view of the program under the Motor Carrier Act, there is no need for a drawn sharply limit to the power of the regulations Commission make to employees whose activities affect the of operation of motor vehicles in foreign interstate or commerce.
Turning to the conclusions of law which were reached the Commission in the proceeding we find the same following:
“Conclusions law.— .. . “2. That our prescribe and maximum hours of service for employees of com- mon and contract carriers and carriers of property by motor vehicle is limited to those em- ployees who devote a substantial part their time to activities which directly affect
of motor vehicles transportation passengers or property interstate foreign commerce.
“3. That we have power, under (a) section 204 said part II, to establish qualifications and maximum hours of service for the classes of covered findings fact numbered 1, 2, and 3 above have and that we
[mechanics, helpers], loaders employees, classes of over other no such drivers. except what held to determine hearing
“A will be further those prescribed if be any, should regulations, found drivers, whom we have other than employees, *20 at necessary No order is jurisdiction. our subject to 125, MC-2, C. C. parte Ex No. 28 M. time.” this 139. claim have the same law, of these do not
As conclusions by made the Commission. finality findings as do the of fact of long record However, light in the of the Commission’s subject responsi- with and its practical experience this law, bility for the administration and enforcement of this special these are consideration. conclusions entitled to 2 Conclusion law No. read in must be close connection with fact 3. finding of No. and conclusion of law No. apparent that, 2, phrase conclusion law No. “employees who devote a part substantial of their time directly activities which the safety operation affect of motor vehicles” is intended to match corresponding phrase finding of fact No. as to loaders who “devote a large part of their time to activities which directly affect the safety of motor vehicles.” made This is still more clear conclusion of law No. 3 which finds that Commission has qualifica- establish tions and maximum hours of service for in- the loaders cluded in both paragraphs. again there is Here no classi- fication respective activities loaders on the basis of the time devoted to activity. each phrase closely follows a discussion of full-duty loaders and its reference to a part “substantial of their time” is but way another saying a part “substantial of their activities as loaders.”
Addressing ourselves to questions presented of law by the case us, before we in United position reaffirm our and 534, South Assns., 310 S.U. Trucking Amer. v. States Inter recognize We U. S. Bayley, v. Co. land with charged agency Commission state Commerce Carrier Motor enforcement and the administration establishment charged especially Act and employees hours of service and maximum carriers and carriers and contract of common com foreign in interstate vehicle by motor property con its considered question no reason to merce. We see mechanics, drivers; full-duty that the activities clusion safety of by it, affect as defined helpers, loaders and employed. they whom are the carriers operation of v. reasoning in Southland Co. In harmony with our Interstate Com that of the Bayley, supra, and with MC-3, 23 M. C. parte in Ex C. merce Commission parte in Ex private carriers, as to MC-3, mechanics, Nos. MC-2 28 M. C. C. as to general, loaders we hold that Com helpers *21 and qualifications establish power mission has the (a) with respect maximum under 204§ of service hours doing in the work of load full-duty engaged employees power that ers, although has not exercised the Commission establishing and maximum affirmatively by qualifications hours of service with to loaders. Amer.
In States v. harmony with decision in United our Assns., Commerce Trucking supra, and of the Interstate MC-28, 13 parte Commission in Ex M. we No. C. C. all power that the Commission such over recognize has employees safety of carriers whose activities affect of such operation and that the Commission does not have such power employees safety over whose activities do not affect In operation. Trucking of the American Associations case necessary any it was not determined that it was for em share, working of ployee all, precise devote or in class work activities, particular time or of his to a of of safety to affect to be held order such class of work case, that of assumed, purposes for the was operation. working time his entire employee that devoted under consideration. single class of work activities to in Commission, however, that noted, It has been recog- loaders, whole, a defining work, the class of in its work fact, in that class of nized, findings of that its directly affect- than those included duties other nature “We conclude It said: ing safety operation. activities their time to large part a loaders devote ve- motor operation of directly safety affect the which commerce, foreign or operated hicles interstate to establish hence that we have said maximum for such under hours service MC—2, Ex C. C. (a).” parte section 204 28 M. the duties 134, and see 139. This means that the nature of full-duty a “loader” is such that it is not essential of even activities be “large part” that more than a of his time or directly affecting safety oper- activities consumed distribut- example—loading, ation of motor vehicles—for ing making heavy light freight secure on parcels possible board a truck so as to contribute as much as also that trip. On the other it means hand, full-duty half a more than of the time or activities of may directly be affect- “loader” consumed activities ing ex- of motor vehicles—for in the ample—in placing freight places convenient terminal, checking lading, point bills etc. From the of view of the Commission and its over question this it is not operation, indicates *22 larger fundamental concern whether or not it is the employee’s smaller fraction of the time or activities that is safety devoted to work. It is the character of the activi- proportion employee’s ties rather than the of either the time or of his that activities determines actual need re reasonable to establish for the Commission’s hours maximum qualifications, with quirements respect This line safety operation equipment. of service, of throughout applied consistent with reasoning of is that jurisdiction in within the keeping results this case. loaders, safety program partial-duty of the Commission’s class only that full-duty loaders, provided as well as regard safety operation, of of work done them affects they may week any particular in less of whether or not not affect days to activities have devoted more hours devoted to they may than have ing safety operation of The Commis affecting safety operation. those such in language asserting its sion uses similar reasoning also resem This helpers. over mechanics and upon a imposes which the Commission bles that duty” service “on “driver” a maximum total of 60 hours of well hours, in as any kind, a “week” of 168 consecutive driving or hours, aggregate, in as a maximum 10 in consecu any period a motor vehicle operating of parte tive hours. Ex No. MC-2, 3 6 M. C. C. M. C. C. has 557, M. C. C. 203. For the Commission example, driver recognized operations, expressly that, charter long hours, but may duty of a bus be on chartered actually that time may spend often as little as one-half of MC-2, All Ex parte No. M. C. C. driving. who is recognize employee an of these conclusions that safety operation affects engaged a class of work that every necessarily engaged during every hour or operation. day directly activities that affect may affect full-duty While the work of a driver while he is the time operation during only part to estab matter, it is essential driving, yet, practical qualifica requirements lish reasonable and activities at all times order tions during be those may protected his truck *23 676 his duties of in the course when, days hours or
particular affect directly acts particular the driver, he does as its operation.18 safety of its the super- of record the Commission’s forth We have set demonstrate operation safety of this field of vision over Con- serves which the Commission only the extent to not qualifica- respect with public safeguarding the gress operation safety of service, maximum hours tions, to demon- carriers, but motor of interstate equipment specialized in this competence high degree the of its strate findings, conclusions its justifies upon field which reliance and recommendations. presented new issue examining
Before
further the
vir
recognize that, by
case,
important
facts of this
Fair
(1)
(b)
13
§
unique provisions
tue
exception
Act, we are dealing with an
Labor Standards
which
by regulations
which is to be measured
to that Act
Administrator
made
Congress
authorized to be
has
Depart
Division, United
Wage
Hour
States
dealing
we are
here with the
Instead,
ment of Labor.19
18
argued
Co.,
F.
Richardson v. James Gibbons
2d
See
Bayley,
In that case
v.
U. S. C. (a) (10) See (7), 213 §213 §§ 213 driver is applied when the test obvious any other class applied than when more work the driver’s This is because motor carrier. safety of operation obviously dramatically affects driving than he is during every of the carrier moment which freight loaded the work of the loader who does the Furthermore, the case transporting. driver has the only has found that it driver, the Commission not tested actually established, but it has establish, revised, a set of service hours aggregate maximum limitation on number of during safely permitted during which he to drive may be any period of 24 estab consecutive hours. also has lished a maximum on dur *25 limitation the number of hours ing “week” any during of 168 consecutive hours which such a safely may permitted duty,” driver to be “on be though even many of his much activities and time while duty” may operation “on not affect of the carrier.20
In present the case, the issue is whether the Commis- sion power the has qualifications establish maxi- mum respect hours service with to partial-duty loaders comparable to petitioner. It is necessary, not as a condition precedent, find that the Commission has ex- ercised, or should exercise, power by such actually estab- lishing qualifications and maximum hours service with respect to loaders general, corresponding to those estab- lished general. for drivers in The existence power is enough. The fact that the Commission has found it necessary to establish qualifications and maximum hours which service cover only drivers, but also partial- Regulations Safety by for Vehicle, Carriers CFR, Motor Cum. Supp., Definitions; Part 190—General Part Service; 191—Hours of 192—Qualifications Part Drivers; Part 193—Driving of Motor Vehicles; 194—Necessary Part Parts Accessories; Part 195— Reports; Accident 196—Inspection Part and Maintenance. opinion that, indication drivers, is an duty Act, ex- Motor Carrier under Commission, power, its full-duty as to as well partial-duty tends to affecting the engaged activities motor carriers.
interstate partial-duty of a by the use can be tested The principle are such example. His activities an driver as safety program them from Commission’s exclusion of In the case consequences. would have serious as to the question there is no full-duty driver, requirements reasonable the Commission to establish and hours of service.21 qualifications to his subjects throughout effect Regulations on these were In the case is concerned. period with which this as that of by the Commission class of work referred to regulations which industry trucks, driver-salesmen These been mentioned above.22 have been issued have than who devoted less adapted expressly were to drivers given The effect thus driving. of their time to 50% employees devote to the fact that such Commission driving less time is not to exclude than one-half of their required qualifi such from of its partial-duty drivers relating to cations. These include those eyesight, physical condition, age, ability speak to read or English, etc., which are it to be important deemed *26 in general. hand, drivers On the other this fact that cer- 21 CFR, Supp., See 49 Cum. 191 Parts and 192. 22 pages 667-668, supra. parte MC-3, Discussed at Ex 23 1, 31, M. C.C. employed by no property
“. . . driver salesman a carrier of percent selling who devotes more than 50 of his time to less than percent driving, loading, like, 50 unloading, to such work as and the permitted required operate shall be to drive or a for motor vehicle aggregate any more than an of 50 hours in week in as defined said (e).” (Such “any period 191.1 a “week” is defined as of 168 con- beginning secutive hours at the time reports the driver for duty, .”) CFR, (b). . . . 49 Supp., Cum. 191.3 time all, of their rather than a part, devote tain ap- an from brought the Commission driving has forth to fit that regulations its modification of propriate eliminating the form takes the fact. The modification that maximum hours the total limitation on Commission’s in of 168 consecu- duty on a week can remain employee driving to an his hours of actual limiting but tive hours in week. This any of not more than such aggregate recog- by agency which is requirement, established body one to establish Congress nized as the authorized applicable to and maximum hours of service is a dem- of motor carriers interstate commerce, drivers necessary that has agency onstration such found regulation active use of this field powers make its driving. follows, part-time principle, as a matter that, power respect full-duty if such drivers exists partial-duty they drivers because affect operation of the interstate motor carriers, exists full-duty also with partial-duty loaders and they loaders because affect too such operation, although precisely the same manner.
From a safety standpoint, partial-duty driver who drives 30 hours continuously and then no drives more dur- ing that week greater creates a hazard than man who drives hours daily days a week. The hazard of driving continuous is not measured adequately by the total during hours which the driver is employed during the week, nor is it eliminated a law which him entitles merely to an increased rate pay for whatever time, above 40 hours per week, he shall in any work one workweek. loading truck load of mixed freight requires that general qualifications of the loader adequate, be regardless proportion working of his time may have been devoted to this activity or to other activities par- ticular week. his hours of Similarly, continuous work *27 for him unfit may render loading heavy during day of the even day though, truck on loading the last in no activities may engage he week, balance of entire are un- activities as only such may engage or whatever safety operation. related to working full time employee case an
We have this “terminal as a “checker” or employment throughout a “loader” If worked full time as foreman.” he had unques- he would have been Commission, by defined the the Commission within tionably Labor him the Fair from of necessary § extent to exclude law of the Com- the conclusions of Standards Act. Under MC-2, 139, a full- M. C. C. mission in Ex parte than a to devote more duty “loader” does not have directly affect- his time to activities part” “substantial power subject to be to the safety order ing maxi- qualifications Commission to establish it is him. So here respect with mum hours of service part that a substantial this case enough purposes for the im- doing or activities consisted petitioner’s a loader activities of very mediate direction of the kind of affecting directly that are described the Commission as activities thus af- operation. petitioner’s appear operation, although fected it does not affecting spent what fraction of his time was activities within operation. consequence, As a he comes of the Commission to establish and maximum him and, hours of service (1) Fair Labor express (b) terms of Standards from Act, excluded, automatically, he is benefits of 7 of that Act.
Recognizing that it is the intent of the Fair Labor Stand- ards give recognition safety program Act to full Act, Motor Carrier this conclusion does not conflict meaning with the of the Fair Labor Standards purpose *28 application of the although scope Act, does reduce 7 of §of compensation provisions compulsory overtime that Act. partial- taken as to which has been contrary position Ad by the helpers loaders and
duty drivers, mechanics, Division, United States Wage ministrator and Hour position This requires Department Labor, mention. to give no desire wide effect doubt arose from a to comply effort to the Fair Labor Standards Act an expansion an Generally, with its remedial character. jurisdic jurisdiction of the Act does not conflict whereas Congress, Acts of tions established under other jurisdiction through expansion here of the Act every (1) jurisdiction interpretation (b) of 13 cuts § down Act. under of the Motor Carrier Commission Furthermore, resolving a seeking practical method of other administrative difficulties such that of deter mining degree or activity of interstate administrative service which should be the measure of the Act of exemption or from has it, the Administrator fix found it practical upon specific proportion of time a particular devoted to kind of activity and make that proportion decisive. In some he instances, regulations, has used as a test of substantiality.23 20%
In
attempt
an
present
resolve the
difficulty in a
similar manner,
the Administrator at one time proposed
if
that,
employee
an
in any given week devoted
or
20%
more
his time
affecting
activities not
oper
ation, he would be entitled to the benefits of the overtime
provisions
7 of
the Fair Labor Standards Act.24 He
soon abandoned this, but he
attempted
has
to answer
CFR,
Supp.,
23 29
(f),
(a)
Cum.
(4),
541.3
(b),
541.4
§§ 541.1
(b).
Ralph Knight,
also,
541.5
Mantel,
Inc. v.
See
“4. . . . “ driv- driver, truck be noted (b) It should aby com- employed mechanic, or loader helper, ers’ spends the who carrier contract, mon, on non- workweek during any time part of his greater *29 (such processing, producing, as exempt activities work, or clerical warehouse or manufacturing goods, safety of not affect work which does type other exemption scope of the not within the operations) is opinion It is the (b) (1). 13 Section contained intend that this Congress did not of the Division that exempt to be available as a vehicle exemption should in work other who most of their time spend exemption.” than that which forms the basis of the limited recognizes In 2 Bulletin he the paragraph of this entitled, espe interpretation is legal effect to which this the meaning of 204 of cially § insofar as it concerns the Motor Act.25 Carrier with the interpretation conflicts, however,
Such an safety program. directly, It conflicts for Commission’s regulation with as to example, the of the Commission 25 (b) (1) scope provided 13 exemption “2. The of the in Section Act interpretation only the the Fair Labor Standards involves Act, The con- but also of Section 204 of the Motor Carrier 1935. Act authority upon fers no Administrator extend or restrict the the to (1) scope exemption provided (b) 13 or even to Section impose legally binding interpretations meaning. as to its This bul- merely is letin to indicate the course which the Administrator intended performance will follow in the of his administrative duties until other- required by rulings wise the authoritative of the courts. It is never- Supreme theless to interpre- be noted that the Court has held expressed tations great bulletins of this Division are entitled to weight.”
684 carriers partial-duty industry drivers of trucks in interstate commerce.26 difficulty with ever-recurring fundamental
The 7 scope Administrator’s interpretation extent he Fair Labor Standards Act is that to the jurisdiction Act expands the of the Fair Labor Standards he under jurisdiction must reduce the of the Commission Carrier no Act, authority Motor whereas he has do so.27 26 22, supra. See note 1945, upon In the recommendation of the Administrator of
Wage Division, Department Labor, and Hour States United S. many proposing was to the Fair introduced amendments Labor Bill, Standards Act. That introduced and as recommended passage by Labor, proposed the Senate on Committee Education expressly expand scope somewhat of the Fair Labor Standards reducing Act without of the Commission under amending Act, by (b) (1) Motor Carrier to read: . “Sec. . .
“(b) provisions apply respect of section shall not (1) any greater employee during part who workweek engaged in work with which the Interstate Commerce Com- *30 qualifications mission has established and maximum hours of service pursuant provisions Act, to the of section 204 of the Motor Carrier 1935; ...”
Hearings on S. 1349before the Subcommittee the on Edu of Senate September 25, 1945, 249, seq.; Rep. cation and Labor. pp. 4, et Sen. 1012, Cong., pp. 3, No. Sess., 11, 17; 2, pp. 5, 79th 2d Part 135. Amendment, Senate, This however, was eliminated on the floor of the Cong. 2656, 2657, 3094, 3095, 3096,3185, passage Rec. before of the Bill, April 5, 1946. Furthermore, it companion was not in the included Bill, 4130, H. reported by R. No. Representatives to the House of 19, on Rep. Committee Labor June H. R. 79th Cong., Sess., although 2d minority it was of report recommended in the that 7, 15, 19. Id. also, Hearings Committee. at See before the Com mittee on Labor of the Representatives, Sess., House of Cong., 79th 1st pp. 864, Congress adjourned taking without on final action Bill, but, either Congress when adjourned, pending neither measure proposal. contained the Act, is the Motor Carrier that, Our conclusion under has to estab- power the Interstate Commerce Commission of for those lish and maximum hours service qualifications transpor- the safety whose service affects contract carriers carriers, tation of common or commerce; foreign property interstate carriers charged that with the admin- such Commission has been Act; in the of that and that istration and enforcement its duties and after extended performance course of found subject, it has the work hearings on op- carrier loaders, by it, as defined affects motor conclude, upon findings of we Furthermore, eration. petitioner that the was em- case, lower courts this freight a motor interstate within ployed by carrier of throughout Motor Act and meaning that, of the Carrier issue, a activities consisted period part at substantial the work more directing, of one or doing, immediately or as defined Interstate Commerce Commis- loaders affecting the vehicles sion and of motor that, foreign commerce; accordingly, interstate him, had to establish Commission, that, service; and maximum hours Act, (b) (1) Fair Labor virtue of Standards pay 7 of Act as to were overtime provisions him. The inapplicable judgment rendered Supreme Court Illinois therefore
Affirmed. dissenting. Mr. Justice Rutledge, is no incon- opinion says, necessary As the Court’s there enforcing Commis- sistency between Interstate Commerce maximum regulations concerning “qualifications sion affecting safety, service of Stat. employees” hours of *31 543, re- limitations, and at the within those 546, time, same Labor Act’s quiring compliance with the Fair Standards Indeed latter would provisions for pay. overtime 686
reinforce Ordinarily, the former. when statutes are not inherently conflicting, applied construing the rule them give is to each much room for operation as is consistent its purposes, with and than terms rather to create conflict unnecessarily between them.
Nothing in the Act Motor Carrier forbids or inhibits operation of 7 of the Fair § Labor Standards Act. The latter statute, repeatedly, has been held is be broadly and liberally applied, in order to prime objects achieve its distributing raising employment standards of living.1 Act exempting pro however contains certain visions, are to be narrowly light which construed in the accomplish statutory purposes.2 order to the same (b) (1).
Among provi § these 13 reads: “The sions of apply respect (1) section 7 shall not with any employee whom the Interstate Commerce power Commission has to establish qualifications and max imum pursuant provisions hours of service to the of section 204 the Motor 1935 . . . .” 52 Act, 1060, Carrier Stat. It is meaning (b) (1) effect which we have now to determine to employees relation who do some work affecting safety in operations and some not affecting it.3
Read literally, light decision,4 the Southland the section exempt would all employees who do work affecting operations, as the Illinois Ap- Court of Local, Tennessee Coal Co. v. Phillips Muscoda 597; 321 U. S. Walling, Co. v. Gonzalez, 490, 493; 324 U. S. v. 127 F. 2d Calaf 934, 937. 2 Phillips Walling, supra; Co. v. Gonzalez, supra. v. Calaf employees engaged As to work, Southland Co. v. full time in such Bayley, 319 U. held S. existence in the Commis- sion, whether exercised, prescribe qualifications or not and hours of service, (b) (1) them excludes under from coverage under Fair Labor Standards Act’s terms. Cf. note 11. 4 Ibid. *32 factually speaking, in
peals For, held this case.5 affecting in work employee spends time an amount of whether spent time thus safety, may but what he do safety. Ten it be determines the effect on large or small may driver do more driving by unqualified minutes of an highway year harm on the than a month or a of constant qualified driving by a one.
It would seem essential therefore to effective con- power trol the Commission it have to deter- should qualifications mine the and maximum hours of service safety, employees substantially all whose work affects spend may what be found to be less they whether or not work. than a “substantial” amount time in that sort of open great- the door to the Anything less than this would drivers casual, unqualified from danger est to motor traffic employees safety. or other whose work affects circumstances a relation may There is or be some effects spent time in such work and substantial between control- an exclusive or upon safety, but is no means not neces- ling scope, one. Time affects the duration of the risk. sarily the existence,
I first” view of the accept “safety Commission’s requires acceptance And of the view power. that, this kinds work, relation to some Commission has prescribe engage of all who any extent, though spent it to the time thus is not daily weekly. five minutes “Substantial effect” in speak- these has if any relation, negatively instances little The court said: “. . . We believe that the true determinant employee performs substantially whether an duties which affect affecting safety operation, safety of rather than whether the duties added.) App. (Emphasis This is 323 Ill. 509. are substantial.” position argument taken in the brief and at the also the Commission’s Supreme 16. The Illinois found the in this See note Court cause. part plaintiff’s test in “a substantial work.” 389 Ill. me work of Driving and the time.” ing, “substantial Loading examples. obvious trucks are repair chanical but de says, the Court obviously less another, be may it is done.6 under which pending upon the circumstances *33 in three functions. helpers the work these So with finding,7 contrary Notwithstanding the Commission’s of cer any part who do this means that all time, regularly work, for short a tain kinds of however power. It within casually, or fall the Commission’s ten minutes means, instance, spends for that a who person day mechanically or an in or in re driving a hour a week remaining a pairing trucks, and the 39 hours of 40-hour in having week work no falls within the upon effect in it authority. For, circumstances, Commission’s such cannot be the comparatively held that minute amount of in spent time or affecting safety work is trivial inconse in quential possible upon its And in safety. effects the view, Court’s as I only understand result not that is it, Commission has to prescribe of all such but that employees,8 they also thereby are ex-
6 Thus, responsibility one who the sole loading directing has or of loading, weight where unequal articles carried is and its dis- may safety, clearly tribution affect seem would to be within the classi- spent fication large hand, whether the time is small. the other On if merely the worker helper, loading is a super- under direct active another, vision of responsibility no obey other than superior’s placement, orders toas it would seem clear that his work safety. does affect 7 15; See text at note 16. note infra opinion puts The ways. the matter g., in various E. “The funda- mental test simply employee’s is that activities affect , operation.” ‘partial-duty “The term loader’ is used . . so as to implication avoid that spent activities, time in certain rather than activities, character of those is to be conclusive factor . . . .” Note “It is essential to the safety program Commission’s when- ever and wherever hazardous activities engaged are in that affect Fair pay provisions the overtime empted from Act. Labor Standards I I cannot from the latter conclusion dissent. (1) incorporated (b) Congress, when
believe that statute, provisions in intended from those to exclude in might day who ten minutes a every employee spend safety and seven hours substantially affecting work having upon work no effect whatever fifty minutes it is exactly (b) (1), it. An literal application frequently lead to But are would this result. we true, be rigidly may literal of a application told that statute achieving especially its It is so purposes.9 ruinous this instance, purposes view of the nature Act construing, variety we are of reasons. my legislative history shows, judgment, expansive did not have in mind so and destruc
Congress
*34
(b) (1)
tive
exemption
application
an
literal
13§
ruling10
Congress clearly
produce.
the Court’s
would
all
exempt
employees
intended to
some
who do not devote
pri-
its
their time to such work. But at the time it acted
safety
engage
qualified . . .
. that those who
in them shall
. .
be
recognize
em-
power
“We
has such
over all
Commission
ployees
safety
the char-
. . . whose
. . .
“It
activities affect
.”
proportion
acter
activities
of either the em-
of the
rather than the
ployee’s
need for the
time or of his activities that determines the actual
loading
. .
.”
load of mixed
Commission’s
.
“The
truck
general
freight requires
be ade-
of the loader
quate, regardless
working
may
proportion
of his
time that
have
activity
petitioner’s
to this
thus
been devoted
. . . .” “The
activities
operation, although
appear
affected
it does not
what fraction
affecting safety
spent
operation.”
in
his time was
activities
9
meaning.
12. “All
Cf. note
construction is the ascertainment of
may strangle meaning.”
Porter,
Utah
328
And literalness
Junk Co. v.
39, 44;
Cabell,
404, 409;
Markham v.
U.
326 U. S.
Church
S.
Trinity
Holy
States,
United
v.
mary concern engaged. In view employees, principally drivers, time so Congress fact, of that it cannot be taken that intended weekly every assigned daily for a few or employee minutes affecting to be eliminated substantially work from a view in pay provisions. prac the overtime Such nullify tical effect would the Act’s broad and inclusive large for as to at purposes whom, numbers of in time, the Commission had shown concern exer no cising safety power its representations its Con gress, as to whom therefore there was no sound reason for or purpose exemption.
Moreover, acceptance such a construction would set an up easy mode for evasion of the Fair Labor Standards Act’s An requirements. employer readily minded so could assign to nonsafety employees whom he desired to pay remove from the overtime requirements work affect- ing portions minute of their total service. Com- mitting the Act’s coverage all such possible situations to a determination employer’s good only faith could invite litigation upon motive, continuous a result tending itself strongly given rights to defeat the Act. I do not think Congress such consequences intended for the statute’s effective when it included 13(b) (1).
The difficulty lies of course not in the lit- only rigidly eral interpretation given to that section, but the corol- exemption (b) (1) suggested made Congress was *35 originally by the Interstate Commerce Commission. United States v. Trucking Assns., American legislative history U. 310 S. 549. The adopted shows that the section operators “was to free of motor vehicles regulation by from agencies drivers,” two of the hours South land Co. Bayley, upon Gasoline v. 44, 48-49, 319 U. S. the understand ing that the Interstate already Commerce Commission “had acted upon hours Id., maximum . . drivers . .” n. (Emphasis at 5. added.) See also note 16.
691 lary assumption complete of intended mutual exclusive ness of the Fair Labor power Commission’s and the I applicability Standards Act’s drawn from it. do As Congress not think one, intended relation to the problem now I presented, so do not believe it had the other in mind. And if was true, problem this then the for us as it becomes, situations, most often in such does making one of accommodation between the two statutes in a give manner which will to each its maximum effect without nullifying Congress’ manifest intention.12
If spirit and purposes of the statutes are taken into account, are inescapably we not compelled to choose be tween the equally untenable alternatives of a completely literal application (1) 13 (b) and a construction which nullify would power concerning the Commission’s great bulk of employees to which it rightfully extends. Although the exemption of 13 (b) (1) is not among those which specifically empower the Administrator to deter mine their scope by regulations,13 he is charged with the duty of administering it and experience is entitled to weight when he formulates conclusions from it for the albeit, purpose of applying the Act’s provisions, they are not conclusive. present problem has been with out difficulty for the Administrator,14 but his final ruling, problem “The statutory construction . . . should not be solved simply by a reading literal exemption section of the Fair Labor delegation Standards Act and section of the Motor Car rier Act. Both parts sections important general are statutes and particular their language should be light pur construed in the poses which led to the legislation.” enactment of the entire Southland Bayley, Gasoline 44, 47. Co. v. 319 U. S. (a) (1), (a) (7), (a) (10), See §§ 13 14The originally interpreted Administrator exemption inap- to be plicable any employee spent who a substantial amount of his time nonexempt Subsequently work. explained “substantial” was twenty mean per more than cent of employee’s Interpre- time. *36 both my opinion
resulting experience, presents from his and the one most consistent most workable solution relating opera- intent to the Congress’ purpose exemption inapplicable Acts. It is that the tion of both of his time spends greater part “who employee non-exempt (such activities during any workweek on manufacturing goods, warehouse producing, processing, or work, type or clerical or other of work which does not affect safety of operations).” pur-
Such a standard is more consistent with the Act’s Court, in the poses applied by only than the one not light legislative history, but also that it is more definite, easily applied, invitingly more conducive not litigation. reasons, For and because I do not these a totally application (b) (1) believe literal was comprehended I presented, for the situations now think a line so drawn nearly Congress most consistent with what accomplish had mind exemption.
However, inconsistency since there is no essential in the operation, two statutes or their I do necessarily not think it part-time follows that employees thus not excluded from the Fair Labor coverage thereby Standards Act’s are excluded from the safety power. Commission’s That I unqualified them, nothing would leave as to since in either statute compels qualification, as to employees not exempted, authority given the Commission to regulate “qualifications and hours of employees” service of work safety. whose affects clearly two statutes are mutually though exclusive, not essentially inconsistent, as to employees primarily engaged in operations affecting & Hour Manual Bulletin, 9, March, tative 1942, Wage No. (1943 ed.) 186, ruling changed Later was so that exemption given present text, was its form as stated in the infra. Interpretative 9, November, Bulletin 1943, Wage & Hour Manual (1944-1945 ed.) 520, 523. think, I virtue necessarily or, They are safety. *37 to as exclusive command, thus Congress’ intent or of others. safety upon effect” “substantial
I agree therefore af doing in work spent time” rather than “substantial Commerce Interstate scope of the the fecting it determines this in However, accepting safety power. Commission’s employees that all one though not the further conclusion, I do so (b) (1), 13 exemption are within so covered own determination, basis of the Commission’s upon not time” of “substantial expressly adopts which the criterion inconsistent with narrower than and and is therefore both The power.15 of its ruling the Court’s as to the extent strongly support tends Commission’s determination scope exemption Administrator’s as to the position (b) (1). But voice is by intended to be created 13 its upon the only persuasive, conclusive, question not rather In time” scope power. adopting of its “substantial agree than I that the Commission has effect,” “substantial purports adopt The the Commission’s basis for deter Court mining employees safety power, especially what are within the parte MC-3, in M. made Ex Nos. MC-2 and C. C. 125. But apparently prescribes since the test the Court now is one of “substan time,” effect” rather tial than “substantial see note it differs from ruling. findings basis of the Commission’s The of fact Commission’s majority opinion. in conclusions law are forth the text of the set quoted finding large part The is that loaders “devote a their time to directly operation.” activities which affect the 28 M. C. C. time, namely, at 139. And the of law is stated in terms conclusion employees “that our ... is limited to those who devote part directly a substantial their time to activities which affect the operation,” power qual and “that have we ... establish employees” by findings ifications . . . for the classes of covered fact, and “that we have no such over other classes em ployees, added.) except (Emphasis drivers.” Ibid. This necessar ily devoting excluded of the classes covered not a substantial part affecting safety, findings. of their time to work in view of the in main its brief this case narrowly. Indeed,
ruled too conclude, I Accordingly independently much.16 tains as adequate full and determination, of its formal function Commission of the performance larger requires conferred the Motor Carrier Act scope ruling operation. which allows for its the Court’s course, in expressed opinion, this would views Pyramid apply Freight Corp. Ispass, Motor v. also day, S. decided this but view the decision in U. necessary this case it file a dissent separate companion one. Murphy join and Mr. Justice
Mr. Justice Black *38 this dissent. conclusions, findings The difference in the Commission’s and parte MC-3, position
made in Ex Nos. MC-2 see note and the by taken here counsel in its difficulty, behalf was the occasion for some if embarrassment, argument. argument, at the brief by findings contrast with the conclusions, maintained: "... that, regardless seems clear of the amount of time devoted the work (or an individual loader foreman), expected loader he is to be fitted, condition, fit perform it when the occasion arises and subject therefore intended authority to be to the Commission’s over qualifications and placed hours service.” squarely Reliance was upon position taken in this case Appeals. Illinois Court of See note 5. sought
Able counsel the Commission to avoid the effect of the findings by restricting and conclusions it to classes of with- out employees. reference individual satisfactorily It was not explained, however, employee how an individual brought could be being brought within the class without within the outer boundary prescribed by the defining Commission for the class.