Levinson v. Spector Motor Serv.

• Citation: 56 N.E.2d 142,323 Ill.App. 505
• Decision Date: 25 July 1944
• Docket Number: Gen. No. 42651.
• Parties: LEVINSON v. SPECTOR MOTOR SERVICE.
• Court: United States Appellate Court of Illinois

323 Ill.App. 505

56 N.E.2d 142

LEVINSON

v.SPECTOR MOTOR SERVICE.

Gen. No. 42651.

Appellate Court of Illinois, First District, Third Division.

June 30, 1944.

Rehearing Denied July 25, 1944.

Appeal from Municipal Court, of Chicago; Wendell E. Green, Judge.

Action by Max Levinson against Spector Motor Service, a corporation, to recover money allegedly due to plaintiff under the overtime provisions of Fair Labor Standards Act of 1938. From a judgment for plaintiff, defendant appeals.

Reversed and remanded with directions.

Golden & Golden, of Chicago, for appellant.

Yale & Yale, of Chicago (Harry L. Yale, of Chicago, of counsel), for appellee.

KILEY, Justice.

This is an action brought by virtue of section 16(b), for violation of the maximum hours provision (section 7), of the Fair Labor Standards Act of 1938, 52 U.S. Stats. 1060, 29 U.S.C.A. § 201 et seq., designed to spread employment and maintain health. Southland Gasoline Co. v. Bayley et al. 317 U.S. 623, 63 S.Ct. 526, 87 L.Ed. 505. Judgment was for plaintiff in the amount of $1,149.88. Defendant has appealed.

Defendant is a Missouri corporation, licensed in Illinois and engaged in interstate commerce as a motor carrier of freight, by which plaintiff was employed from October 1, 1939 to October 6, 1941. He claims that he worked 87 hours per week for the period from October 1, 1940, to October 6, 1941, during which defendant violated section 7 of the Act by refusing to pay him time and a half for all hours in excess of 42 hours per week during the period from October 1 to October 24, 1940; and for all hours in excess of 40 hours per week from October 25, 1940 to October 6, 1941, less one week's vacation. The maximum working hours are established in section 7 (a), (1), (2) and (3) of the Act.

Defendant's affirmative defense is that the nature of plaintiff's employment, exempted him from the provisions of the Act (section 13) and brought him under the exclusive jurisdiction of the Interstate Commerce Commission, since his duties were those of “dock man”, “loader” and “dock foreman” and directly connected with the safety of equipment and cargo in interstate commerce.

The trial court found in its judgment order entered December 28, 1942, that the plaintiff worked 87 hours per week during the period for which the suit was brought and that the major portion of the work performed by him during that period did not affect the safety of defendant's operations and that plaintiff was not exempted from the provisions of the Act. The defendant argues that the finding that the plaintiff is not exempted is erroneous as a matter of law and is against the manifest weight of the evidence; and also that the amount of the judgment entered exceeded the court's jurisdiction in plaintiff's fourth class action.

Section 13(b) exempts from the provisions of section 7 of the Act any employee subject to the jurisdiction of the Interstate Commerce Commission under section 204 of the Motor Carrier Act of 1935, 49 U. S. Stats. 543, 49 U.S.C.A. § 304. That section empowers the Commission to regulate the qualifications and hours of service of employees' whose activities affect the safety of operation. United States v. American Trucking Association, 310 U.S. 534, 553, 60 S.Ct. 1059, 1067, 84 L.Ed. 1345. The decisive question on the merits is whether plaintiff is such an employee.

In the Trucking Association case, the court said that “the interpretation” of the Interstate Commerce Commission and the Department of Labor “are entitled to great weight”. In Ex parte No. M. C.-2, Vol. 28 Interstate Commerce Commission Reports, page 125, the Commission interpreted the term “safety of operation” used in that case to include employees who devote a substantial part of their time to activities which directly affect safety of operation; that among such employees were “loaders”, variously called “loaders, dock men or helpers”, who devote a large part of their time to activities directly affecting safety of operation and whose sole duties are to load and unload motor vehicles, etc. Plaintiff contends he is a checker, not a loader, and therefore, not within the Commission's interpretation. We believe that his duties--not the name given his position--are determinative. To preclude the exemption provided in Sec. 13(b) of the Act from applying to him, plaintiff relies upon McKeown v. Southern California Freight Forwarders, U. S. District Court, Southern District of California, 49 F.Supp. 543;Overnight Motor Transportation Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682;Magann v. Long's Baggage Transfer Co., D.C., 39 F.Supp. 742; and mainly upon Anuchick, et al. v. Trans-American Freight Lines, U. S. District Court, Eastern District of South Michigan, 46 F.Supp. 861. The facts in the first two, place the employee plainly outside the exemption; and in the third, a truck driver was found to be exempt. In the Anuchick case, the court found that certain employees devoted a substantial part of their time to work not directly affecting safety of operation and, on the theory that it was bound by the Department of Labor's interpretation of the term “substantial” in Bulletin No. 9, gave judgment for the employees. The interpretation in Bulletin No. 9 then prevailing was that “substantial” meant in excess of 20% of duties not connected with loading and unloading. Bulletin No. 9, as revised to October 1943, modifies the earlier interpretation to mean “the greater part of his time during any work week on non-exempt activities.” We assume the court in the Anuchick case would have accepted this later interpretation had it then been effective and, unless the employees there spent...