McDuffie v. Hayes Freight Lines

• Decision Date: 24 May 1947
• Docket Number: No. 680-D.,680-D.
• Citation: 71 F. Supp. 755
• Parties: McDUFFIE et al. v. HAYES FREIGHT LINES, Inc.
• Court: U.S. District Court — Eastern District of Illinois

71 F. Supp. 755

McDUFFIE et al. v. HAYES FREIGHT LINES, Inc.

No. 680-D.

District Court, E. D. Illinois.

May 24, 1947.

Kenneth A. Green, of Mattoon, Ill., and Ben Norwood, of Danville, Ill., for plaintiffs.

David Axelrod and Carl L. Steiner, both of Chicago, Ill., and Thos. G. Stifler, of Danville, Ill., for defendant.

LINDLEY, District Judge.

Plaintiffs are employees of defendant, who is engaged in interstate commerce by truck. Some of them are painters, others, repairmen and still others perform other duties for defendant. They bring their action pursuant to Section 16(b) of the Fair Labor Standards Act, 29 U.S.C.A. § 216(b), to recover "unpaid overtime compensation," liquidated damages and reasonable attorneys' fee.

Defendant contends that all plaintiffs are excluded from the provisions of the Fair Labor Standards Act by virtue of Section 13(b) (1), 29 U.S.C.A. § 213(b) (1), which provides that the Act shall not apply to "any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service," pursuant to Section 204 of the Motor Carrier Act of 1935, 49 U.S.C.A. § 304(a) (1), (2) and (3), which provides that the Interstate Commerce Commission may, in regulating carriers by motor, establish requirements with respect to various matters, including "qualifications and maximum hours of service of employees, and safety of operation and equipment." Plaintiffs claim, on the other hand, that their employment, for which they seek recovery, had nothing to do with safety of operation and equipment.

The Supreme Court, in the recent case of Levinson v. Spector Motor Service, 67 S.Ct. 931, 938, held that "the Commission's mere possession of that power, whether exercised or not, necessarily excludes all employees, with respect to whom the power exists, from the benefits of the compulsory overtime provisions" of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., saying that "Congress has prohibited the overlapping of the jurisdiction of the Administrator of the Wage and Hour Division * * * with that of the Interstate Commerce Commission as to maximum hours of service." After referring to the orders of the Interstate Commerce Commission with regard to various specific employees, the court proceeded to define the category of those who are thus removed from the benefits of the Fair Labor Standards Act and placed under the Interstate Commerce Commission as those "a substantial part of whose activities affects the safety of interstate motor carrier operations, although the rest of their activities may not affect the safety of such operations." Said the court, "the fundamental test is simply that the employee's activities affect safety of operation. * * * it is not a question of fundamental concern whether or not it is the larger or the smaller fraction of the employee's time or activities that is devoted to safety work. It is the character of the activities rather than the proportion of either the employee's time or of his activities that determines the actual need for the Commission's power to establish reasonable requirements with respect to qualifications, maximum hours of service, safety of operation and equipment." In Pyramid Motor Freight Corporation v. Murray Ispass, 67 S.Ct. 954, 955, the cause was remanded to the District Court with directions to that court "to determine whether or not the activities of each respondent consisted, wholly or in substantial part, of the class of work" affecting the safety of operations of motor vehicles in commerce. Under these decisions there is no longer any doubt as to the extent of the power of the Commission to control the wage and hours of employees of defendant. Nor is there any doubt remaining that, in view of Congress having granted the power to the Commission in this respect, the exemption of such of plaintiffs as are concerned with "safety" from benefits under the Fair Labor Standards Act exists irrespective of whether the Interstate Commerce Commission has attempted to exercise its power.

It may not be amiss to refer to the decisions of certain district courts. Each of them throws some light upon the manner in which they have approached the subject, though the decisions must be read in the light of what the Supreme Court has said. They are helpful only as illustrative of practical application of the rule. In Robbins v. Zabarsky, D.C., 44 F.Supp. 867, the court held that a mechanic repairing and servicing trucks and equipment is subject to regulation by the Commerce Commission and is thereby excluded from the operation of Fair Labor Standards Act. In Tineralla v. Des Moines Transp. Co., Inc., D.C.N.D.Ill., 41 F.Supp. 798, the court held that an employee whose duties are checking, inspecting, servicing, repairing, and generally maintaining trucks engaged in interstate commerce is one whose duties affect safety of operation within the Supreme Court's definition in United States v. American Trucking Associations, Inc., 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345. In Wolfe v. Union Transfer & Storage Co., D.C., 48 F.Supp. 855, the court held that a mechanic employed by a common carrier of freight by motor vehicle in interstate commerce to repair and maintain the vehicles in proper condition for safe operation is within the jurisdiction of the Commerce Commission and not that of the Administrator of the Fair Labor Standards Act. In McKeown v. Southern California Freight Forwarders, D.C., 49 F. Supp. 543, the court held that the activities of employees consisting chiefly of unloading goods and checking them, did not affect the safety of operations so as to bring them within the jurisdiction of the Commission. In Crean v. M. Moran Transp. Lines, Inc., D.C., 57 F.Supp. 212, the court held that an employee whose duties include loading and unloading, inspecting physical condition of trailers, labeling shipments, removing leaking packages, is engaged in activities affecting safety of operation. In Walling v. Silver Fleet Motor Express, Inc., D.C., 67 Supp. 846, the court distinguished between the activities of certain employees holding that building bodies or rebuilding badly damaged bodies is construction or manufacture rather than maintenance and repair; that the work of mechanics inspecting and repairing defects is concerned with the safety of operation; that loaders are similarly concerned with such safety but that employees unloading and working in warehouses had no connection with safety of operation. In Anuchick v. Transamerican Freight Lines, Inc., D. C., 46 F.Supp. 861 the court made a similar distinction holding that building bodies amounts to manufacture, not within the jurisdiction of the Commerce Commission and that rebuilding tractors, salvaging whatever is capable of being re-used and installing generators is not work in safety of operation, but that replacing brakes or lights with new ones does involve such safety.

Many other cases have come before the courts and, of course, each case has been determined in the light of the particular facts involved, but from them, in view of the Supreme Court's announcements, a rather definite conclusion as to the proper standard in testing the employment of any laborer seems obvious. Those employees, a substantial portion of whose time is spent in inspection, repair and maintenance of trailers or tractors, including motors, lights, brakes, or otherwise in creating or maintaining physical conditions essential to the safety of the trailer or tractor on the highway come within the exemption under which jurisdiction has been lodged by Congress in the Interstate Commerce Commission. On the other hand, those employees who are engaged in the manufacture of new trailers or such substantial repair of them as to amount to rebuilding, designing and building trailers, painting, cleaning, removing paint from them and such similar activities are not concerned with safety of operation and are, therefore, within the Fair Labor Standards Act. The real test as to whether exclusion exists lies in the fact as to whether a substantial part of the employee's work is concerned with safety of operation or equipment. Not only was that the conclusion of the Supreme Court affirming the Supreme Court of Illinois, in Levinson v. Spector Motor Service, 389 Ill. 466, 59 N.E.2d 817, but it has been the conclusion also in the trial courts in the cases cited and in various other decisions. In view of the recent decisions of the Supreme Court, there can no longer be any question as to the propriety of this standard. It becomes necessary, therefore, for me to determine whether any of the employees are entitled to recover in whole or in part.

Scott Jones, employed in the mill room, framed material for use in trailers, using planes and saws to shape the pieces of material, did repairing of cabs, platforms, doors and trailer beds and made a few warning red flags. No substantial part of his duties was concerned with safety of operation or equipment. Homer McDuffy cleaned, painted and repainted trailers, tractors and company automobiles. He painted some diagonal lines on the rear of trailers and did some masking of lamps. He removed some tires while he did painting and then replaced them. No substantial part of his labor was concerned with the safety of operation or equipment. No substantial part of Warren Jones' duties was in the slightest degree concerned with safety. He is a janitor and caretaker. The same is true of Hubert Bowen. He stacked lumber, painted trailers, took tires off of rims and remounted them; cleaned, removed paint, repaired doors on trailers and put reflectors on the rears of trailer bodies. Glen Taylor and Joe Gore come in the same category. Their work was that of construction in no wise connected with safety of operation. Neither L. O. Timmons' nor Joe Beals' was...