Thе Administrator ot the Wage and Hour Division, United States Department of Labor, appeals from the judgment of the District Court, dismissing the complaint in an action brought by him under § 17 of the Fair Labor Standards Act to enjoin the ap-pellee from violation of §§ 15(a) (1) and 15(a) (2) of the Act [§§ 217, 215(a) (1), 215(a) (2), Title 29 U.S.C.A.].
The stipulated facts are briefly as follows : The appellee, a common carrier by motor vehicle, is the sole owner and operator of J. F. Morris Cartage Company in Ecorse, Michigan, doing business in and about Detroit, Michigan. He employs approximately 4-0 truck drivers, 14 mechanics, painters, washers, and repair men in the garage, 3 dispatchers and 3 general office workers. His operations are centralized at his main garage and yard in Ecorse, Michigan, which is used as a dispatch offiсe, general maintenance and repair garage and storage space for equipment when not in active use. Although he is engaged in a general cartage business and is prepared to render such service to the general shipping public, approximately 97% of his business consists of the interplant transportation of unfinished steel in the course of its manufacture and the transportation of fin *834 ished steel from the mills where it is produced to the plants of manufacturers in Detroit. This involves the transportation оf steel from industrial establishments in Detroit to the mills of the Great Lakes Steel Corporation and the Michigan Steel Corporation at Ecorse, Michigan, and the transportation of steel from these mills to the plants of various Detroit automobile and parts manufacturers, as well as the hauling of unfinished steel between plants of the Great Lakes Steel Corporation or the Michigan Steel Corporation or the interplant hauling between the two mills. The steel transported is principally bumper stock, fender stoсk and other types of steel commonly used in the production of automobiles, trucks, trailers, machinery, and other goods, a substantial portion of which is sold and shipped in interstate commerce.
Approximately three percent of appel-lеe’s business consists of miscellaneous local cartage of a pickup and delivery character, which involves the handling of goods in transit to and from points outside the State of Michigan. Of appellee’s total operations in 1941 (the calendar yеar preceding the filing of the complaint), 96.35 percent (19,062 trips of a total of 19,786 trips) represented interplant transportation. The remaining 3.65 percent were pickup trips, involving interstate transportation. In the average workweek throughout the entire year 1941, 75.6 percent of the drivers were exclusively engaged in interplant trips. The remaining 24.4 percent of the drivers in the average workweek during that year made one or more pickup or boatdock trips, or both. Two employees were exclusively engaged in interplant hauling during the full period of their employment during the year 1941. The “average employee” was exclusively engaged in interplant transportation during 75.6 percent of the workweek in 1941.
Each of the three of defendant’s office employees is employed on a weekly salary basis and is compensated at a rate in excess of that required to be paid by § 6 of the Act, 29 U.S.C.A. § 206. None of these three office employees has ever worked in excess of the maximum number of hours described in § 7 of the Act, 29 U.S.C.A. § 207, in any workweek.
The superintendent of maintenance, Herbert E. Smith, is paid a straight weekly wage of $60 regardless of number of hours worked. During substantially all of the workweeks since October 24, 1938, the effective date of the Act, he has been employed for a number of hours in excess of the number provided in § 7 of the Act without receiving compensation in excess of his regular weekly salary. In the normal course of his employment he has full authority over all mechanics and laborers with power to hire or discharge such emрloyees and to make determinative representations concerning their employment. He works the same schedule of hours as the other mechanics and laborers, and devotes approximately 25% of his time in the performance of routine physical tasks of the same general character as that of the employees working under his direction and supervision.
The other employees of the appellee are employed on the basis of a fixed hourly rate of pay and are paid no additional compensation for hours worked in excess of 40 hours per week, except in the case of truck drivers, who, pursuant to the provisions of their collective bargaining agreement with appellee, receive time and one-hаlf their regular rate of pay for all hours worked in excess of 54 in any workweek. This collective bargaining agreement is a Standard Union contract covering all union drivers engaged in general cartage within the Detroit Metropolitan Area, whether employed in purely intrastate operations or in interstate operations.
The appellee denied that his employees were engaged in the production of goods for commerce within the meaning of § 3(j) of the Act; denied violation of the provisiоns of the Act; and claimed the exemptions provided by §§ 13(a) (1) and 13(b) (1) of the Act. See §§ 203(j), 213(a) (1), and 213(b) (1), Title 29 U.S.C.A. The District Court held that neither the appellee nor his employees were engaged “in the production of goods for commerce” within the meaning of the Fair Lаbor Standards Act, and that, in any event, the dispatchers and superintendent of maintenance were employed in a bona fide executive or administrative capacity and were exempt under § *835 13(a) (1) of the Act, and that the truck drivers and garage employees were employees with respect to whom the Interstate Commerce Commission had power to establish qualifications and maximum hours of service pursuant to the provisions of § 204 of the Motor Carrier Act of 1935, 49 U.S. C.A. § 304, and were exempt under § 13 (b) (1) of the Act. Other defenses raised by the answer were not ruled on by the District Court and are not urged by the appel-lee in this appeal.
The District Judge, in his ruling of September 26, 1945, did not have before him the decision of this Court in Griffin Cartage Company v. Walling, Administrator, 6 Cir.,
§ 13(b) (1) of the Fair Labor Standards Act provides that the provisions of § 7 of the Act dealing with maximum hours and overtime compensation shall not apply to “any employee with respect to whom the Interstate Commerce Commissiоn has power to establish qualifications and maximum hours of service pursuant to the provisions of § 204 of the Motor Carrier Act, 1935.” § 204 of the Motor Carrier Act, Title 49 U.S.C.A. § 304 was construed by the Supreme Court in United States v. American Truck Associations,
Where an employee of a motor carrier devotes part of his time to work in interstate commerce affecting the safety of operation and devotes the rеmainder of his time to work which is not exempt from the provisions of the Fair Labor Standards Act, the question arises whether he has devoted a sufficient part of his time to the work which is exempt to bring him within the exemption provision of the Act. The Administrator of the Wage and Hour Division takes the position that the exemption is applicable to a truck driver only if he spends the greater part of his time during any workweek on exempt activities. On the other hand, some Courts have adopted the rule that the exemption is applicable to any truck driver who devotes a substantial part of his time in any workweek to the driving of trucks in interstate commerce, while other Courts have held that the exemption is applicable to any truck driver who performs any duties during the workweek which substantially affect the safety of operation, although the amount of such duties
*836
is comparatively small. Three cases involving these different views are now pending before the Supreme Court. See Walling v. Comet Carriers, 2 Cir.,
§ 13(a) (1) of the Act exempts from the wage and hour provisions “any employee employed in a bona fide executivе (or) administrative * * * capacity * * * (as such terms are defined and delimited by regulations of the Administrator).” Pursuant to this authority the Administrator has issued regulations defining and delimiting such terms. Both the regulation defining “Executive” (§ 541-1) and the one defining “Administrative” (§ 541-2) require the existence of certain facts — in the conjunctive rather than the disjunctive. This includes for the “executive” that he be “compensated for his services on a salary basis at not less than $30.00 per week,” and that his “hours of work of the same nature as that performed by nonexempt employеes do not exceed 20 percent of the number of hours worked in the workweek by the nonexempt employees under his direction.” It includes for one employed in an “administrative capacity” that he be "compensated for his services on a salary or fee basis at a rate of not less than $200 per month,” and that his work be non-manual in nature and require the exercise of discretion or independent judgment. The validity and binding effect of these regulations are well established. Sun Publishing Company v. Walling, 6 Cir.,
The judgment of the District Court is reversed and the case remanded for further proceedings consistent with the views expressed herein.