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WALLING v. PALMER

UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF PENNSYLVANIA


August 29, 1946

WALLING, Adm'r of Wage and Hour Division, U.S. Dept. of Labor,
v.
PALMER

The opinion of the court was delivered by: WATSON

This is an action brought by the Administrator of the Waste and Hour Division of the United States Department of Labor, under Section 11(a) of the Fair Labor Standards Act of 1938, Act of June 25, 1938, c. 676, 52 Stat. 1060, 29 U.S.C.A. § 201 et seq., to restrain future violations of that Act's requirements.

The case was tried before the Court sitting without a jury.

 Discussion

 An injunction is sought restraining the defendant from violating three distinct sections of the Act, namely, Section 6, 29 U.S.C.A. § 206, which provides for minimum wages, Section 7, 29 U.S.C.A. § 207, which provides for maximum hours, and Section 11(c), 29 U.S.C.A. § 211(c), which provides for the proper maintenance of records.

 In a stipulation filed in this case it was agreed that the defendant is the sole owner and operator of a place of business and garage in Lackawanna County, Pennsylvania, and is engaged in the State of Pennsylvania, New York and New Jersey as a contract carrier in transporting and receiving for transportation, offering for transportation and delivering goods in interstate commerce. It was further agreed that the defendant employees approximately fifty-seven persons in the following capacities: Three mechanics, thirty-seven drivers, nine or more garage, utility and safety men, and a janitor; and that all of those employees are engaged in interstate commerce and in the production of goods for interstate commerce as those terms are used in the Fair Labor Standards Act of 1938. There was further evidence that a fifth class of persons was also employed by the defendant, that of office employees.

 Defendant alleged in his answer that by virtue of Section 13(b) of the Act *fn1" he is not subject to the provisions of the Fair Labor Standards Act. Section 13(b), however, refers to Section 7 only (the provision for pay for overtime hours) and does not refer in any way to Section 6 or Section 11(c). The defendant is, therefore, not relieved from the minimum wage requirements of the Act contained in Section 6 or the record-keeping requirements contained in Section 11(c).

 There was no evidence to show failure on the part of the defendant to pay the minimum wage, and the court will not enjoin the defendant from any further violation of Section 6.

 There was evidence submitted which indicated that the defendant had not kept records for his office employees at any time. The office employees are engaged in interstate commerce and as such are subject to the Administrator's regulations requiring the keeping of records of hours worked. Overnight Motor Transportation Company, Inc., v. Missel, 316 U.S. 572, 62 S. Ct. 1216, 86 L. Ed. 1682. The exemption mentioned in Section 13(b)(1) does not apply to Section 11(c).

 We now arrive at the chief problem which involves those employees whom the defendant calls garage, utility and safety men, and also the employees in the janitor class. The defendant claims that these are men as to whom the Interstate Commerce Commission has power to establish qualifications and hours of service and that, for that reason, the overtime provisions of the Fair Labor Standards Act are not applicable to them by reason of Section 13(b)(1) of the Act. Plaintiff contends, however, that Section 13(b)(1) does not apply to these men.

 Section 204(a)(2) of the Motor Carrier Act of 1935, *fn2" authorizes the Interstate Commerce Commission to establish qualifications and maximum hours of service in regard to certain employees. If the employees in question fall within Section 204(a)(2) of the Act, then they are exempt from Section 7 of the Fair Labor Standards Act by virtue of Section 13(b)(1) of that Act.

 The United States Supreme Court has specifically upheld the position of the Interstate Commerce Commission that the meaning and scope of Section 204(a)(2) of the Motor Carrier Act extends only to establishing qualifications and maximum hours of service of employees whose activities affect the safety of operation. United States v. American Trucking Ass'ns, 310 U.S. 534, 60 S. Ct. 1059, 84 L. Ed. 1345. In short, the exemption from the overtime requirements of the Fair Labor Standards Act contained in Section 13(b)(1) is limited to employees of a contract carrier who spend the majority of their time in operations or occupations affecting the safety of operation of motor vehicles.

 The drivers and mechanics are not only engaged in interstate commerce but are also employed in activities which affect the safety of operation of motor vehicles, and the exemption from the overtime requirements of the Act, therefore, is applicable to them and no question arising concerning them in this case.

 Reference has already been made to the office employees as being engaged in interstate commerce but, in the opinion of the Court such office employees do not engage in activities involving safety of operation of motor vehicles and, therefore, are subject to the Fair Labor Standards Act. As to the janitor, the same conclusion is reached. Kirschbaum v. Walling, 316 U.S. 517, 62 S. Ct. 1116, 86 L. Ed. 1638.

 The remaining employees belong to the class referred to as garage, utility and safety men, who perform miscellaneous maintenance operations involving checking tires, washing the trucks and trailers, filling the tanks with gas, checking the brakes, hooking up the trailers to the tractors, putting oil in the motors, water in the batteries and radiators, and checking the lights. Since these operations are performed on motor vehicles which are currently transporting goods in interstate commerce, these employees are accordingly so closely connected with this interstate transportation as to be considered engaged in interstate commerce. The provisions of the Act, are, therefore, applicable to these employees, and the burden of proving the applicability of the exemption of Section 13(b)(1) rests upon the party asserting its applicability, the defendant here. Schlemmer v. Buffalo, Rochester & Pittsburgh Ry. Co., 205 U.S. 1, 27 S. Ct. 407, 51 L. Ed. 681. The following schedule outlines the time requirements according to the testimony given and is broken down into what are apparently activities affecting safety of operation and those not affecting safety of operation: Estimated Activities Activities not Activity Time affecting Safety Affecting Safety of Operation of Operation Checking Tires 10 min. 10 min. **** Washing tractor and 1 hr. *** 1 hr. trailer Bleeding brakes and hooking up tractor and trailer 20 min. 20 min. **** Filling gas tank 15 min. *** 15 min. Oiling Motor 1 min. *** 1 min. Water in radiator 1 min. *** 1 min. Water in battery 1 min. *** 1 min. Checking lights and changing bulbs 5 min. 5 min. *** Totals 1 hr. & 53 min. 35 min. 1 hr. & 18

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