Epps v. Weathers

• Decision Date: 11 January 1943
• Docket Number: No. 189.,189.
• Parties: EPPS v. WEATHERS.
• Court: U.S. District Court — Southern District of Georgia

49 F. Supp. 2

EPPS v. WEATHERS.

No. 189.

District Court, S. D. Georgia, Augusta Division.

January 11, 1943.

Robert A. Persky, of Augusta, Ga., for plaintiff.

W. Inman Curry, of Augusta, Ga., for defendant.

LOVETT, District Judge.

Asserting that they were not paid the minimum wages and over-time compensation required by sections 6 and 7 of the Fair Labor Standards Act of 1938,¹ the plaintiff Epps for himself and as designated agent for three co-employees brings this suit under section 16(b) against their employer to recover the unpaid wages and compensation, the liquidated damages and attorneys' fees and costs, authorized by that section.

The defendant, owning and operating a fleet of trucks and admittedly engaged in interstate commerce, answers that he paid full wages under section 6 for time actually worked, and as to over-time compensation he sets up in his answer that the employees suing, because they are employees with respect to whom the Interstate Commerce Commission has power to establish maximum hours of service pursuant to the provisions of the Motor Carriers Act of 1935, now part II of the Interstate Commerce Act as amended in 1940,² may not invoke section 7, as it is by section 13(b)³ expressly made inapplicable to them.

The case was tried to the court without a jury. My findings and conclusions follow.

Facts.

The plaintiffs are "drivers" of trucks, or "drivers' helpers" or "loaders", who crate, pack, assemble and load or unload the commodities transported by the trucks. They kept no records of the hours worked in any work-week. They depend entirely on their recollections, and their testimony as to the hours they worked during various weeks over a period of nearly four years is vague, indefinite and unsatisfactory. While for the periods in controversy there was a general understanding between employer and employees as to the hours they should report and complete their work each day, the understanding seems to have been more honored in the breach than in the observance. Apparently the employer did not understand that he was required to keep accurate records of such hours and therefore in that respect did not comply with the regulations of the Administrator; he merely computed the total hours they had worked each week and made his payments accordingly, at not less than the minimum hourly rates prescribed by the Act. He did not pay over-time compensation at a rate not less than one and one half times the regular hourly rate. He kept a permanent record only of the payments, which is in evidence, and has testified positively the payments were computed and made in accordance with the hours worked and the wage provisions of the Act for the several years of the service. The plaintiffs accept the statement of defendant as to the weekly payments made but not as to the hours they worked. They testify they worked upon an average 60 hours per week. I think the evidence of the defendant, based on his pay roll records, is more credible than that of the plaintiffs, and the facts I find accordingly. That these plaintiffs did not work each day in a week and worked irregular hours during each week is made manifest by the pay roll records, which plaintiffs adopt as correctly representing the compensation paid, for their weekly compensation varied from the low figures of $3 to $5 to as high figures as $23 to $24. They were also made advances of smaller amounts from time to time. Because the volume of defendant's business varied from day to day plaintiffs usually left their work when the day's work was done. Under circumstances like these, without some record to refresh one's memory, it seems quite impossible any employee could remember with any degree of accuracy how many hours he worked in any week extending over a period of four years in the past.

Discussion.

1. Plaintiffs come within the over-time compensation provisions of section 7 of the Fair Labor Standards Act unless they were of the class of employees expressly exempted by section 13(b), which reads: "The provisions of Section 7 section 207 of this title shall not apply with respect to (1) any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49".

Title 49, Secs. 304(a) (1) and (2) provide: "It shall be the duty of the Commission — To regulate common carriers and contract carriers by motor vehicle as provided in this chapter, and to that end the Commission may establish reasonable requirements with respect to * * * qualifications and maximum hours of service of employees, and safety of operation and equipment."

Though literally the language of the Motor Carriers Act as amended just quoted is broad enough to include all employees of common and contract carriers (and similar language as to private carriers is equally broad), the word "employees" has been interpreted to mean "those employees whose activities affect the safety of operation" of the vehicles used in transportation. United States v. American Trucking Ass'n, 310 U. S. 534, at page 553, 60 S.Ct. 1059, 84 L.Ed. 1345.

It is contended here that as to "drivers" until October 15, 1940, and as to "loaders, drivers' helpers" until March 4, 1941, the Commission had not declared them within the class of employees affecting safety of operation.⁴ The first questions therefore are (1) do the activities of the employees here affect safety of operation and (2) if so, are they exempt before and because of the failure of the Commission to exercise the granted power.

The Commission has always regarded drivers as subject to their jurisdiction, and no one can deny they are responsible for the safe operation of the vehicles they control. See Maximum Hours of Service of Motor Carrier Employees, 11 M.C.C. 203 and Motor Carrier Safety Regulations — Private Carriers, 23 M.C.C. 1. Loaders and Drivers' helpers on March 4, 1941, were found by the Commission to perform duties which affect the safety of operation of motor vehicles. In the matter of Maximum Hours of Service of Motor Carrier Employees, Ex parte MC-2, 28 M.C.C. 125. The reasoning of the Commission as to loaders applies equally to one who crates and packs the goods for shipment. It seems clear that all of the plaintiffs are within the class over whom the Commission has jurisdiction to prescribe qualifications and hours of service, and therefore are exempt from the overtime provisions of Section 7 of the Fair Labor Standards Act unless delay or failure of the Commission to exercise its power keeps them under it.

It will be observed the exemption is based upon the "power to establish" by the Commission and not by its exercise. It is the existence of the power—not the exercise of it—which gives the exemption, if we give the words of the statute their ordinary meaning.⁵ The reason for...