Missel v. Overnight Motor Transp. Co.

• Decision Date: 20 February 1941
• Docket Number: Civil No. 901.
• Citation: 36 F. Supp. 980
• Parties: MISSEL v. OVERNIGHT MOTOR TRANSP. CO., Inc.
• Court: U.S. District Court — District of Maryland

36 F. Supp. 980

MISSEL v. OVERNIGHT MOTOR TRANSP. CO., Inc.

Civil No. 901.

District Court, D. Maryland.

February 20, 1941.

William O. Tydings and George A. Mahone, both of Baltimore, Md., for plaintiff.

John R. Norris, of Baltimore, Md., for defendant.

WILLIAM C. COLEMAN, District Judge.

This case, which arises under the Fair Labor Standards Act of 1938, 29 U.S.C.A. §§ 201-219, and involves also the Motor Carrier Act, 1935, 49 U.S.C.A. §§ 301-327, is before the court on a motion of the defendant to dismiss the bill of complaint on the ground that it fails to state a claim against the defendant upon which relief can be granted.

The bill of complaint discloses that the defendant is a common carrier of freight in interstate commerce by motor vehicle, and that plaintiff was employed by the defendant or its predecessor (whose assets and liabilities the defendant assumed) as a rate clerk from October 24, 1938, to October 19, 1940, and that during this period he worked certain hours in excess of the maximum work-week stipulated by the Fair Labor Standards Act of 1938, and that for such overtime, defendant did not pay him at the rate of one and a half times the regular rate at which he was employed, as required by this act. Accordingly, the plaintiff brought suit under Section 16(b) of this act, 29 U.S.C.A. § 216(b), and has asked for the relief provided in that section, which reads as follows: "Any employer who violates the provisions of section 206 or section 207 of this chapter shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action."

It is clear that this court is one "of competent jurisdiction" to entertain the present suit by virtue of Section 24, Paragraph 8 of the Judicial Code, 28 U.S.C.A. § 41(8), which gives to the district courts original jurisdiction "Of all suits and proceedings arising under any law regulating commerce." The basis for the legislation enacted in the Fair Labor Standards Act is the power of Congress to regulate interstate commerce. The defendant is subject to the provisions of the Motor Carrier Act, 1935, as amended by the Transportation Act of 1940, Sections 15 to 27, inclusive, approved September 18, 1940, 49 U.S.C.A. §§ 301-327. It thus follows that this court has jurisdiction regardless of the amount in controversy or the citizenship of the parties.

The basis of defendant's motion to dismiss the bill of complaint is Section 13(b) (1) of the Fair Labor Standards Act of 1938, which provides as follows, 29 U.S. C.A. § 213(b)(1): "The provisions of section 207 fixing maximum hours of work 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; * * *."

49 U.S.C.A. § 304(a)(1) and (2) provides as follows:

"Powers and duties generally. It shall be the duty of the Commission —

"(1) To regulate common carriers by motor vehicle as provided in this chapter, and to that end the Commission may establish reasonable requirements with respect to continuous and adequate service, transportation of baggage and express, uniform systems of accounts, records, and reports, preservation of records, qualifications and maximum hours of service of employees, and safety of operation and equipment.

"(2) To regulate contract carriers by motor vehicle as provided in this chapter, and to that end the Commission may establish reasonable requirements with respect to uniform systems of accounts, records, and reports, preservation of records, qualifications and maximum hours of service of employees, and safety of operation and equipment."

In interpreting these two inter-related statutory provisions, the Supreme Court, in United States v. American Trucking Associations, Inc., 310 U.S. 534, 60 S.Ct. 1059, 1069, 84 L.Ed. 1345, has declared that the power of the Interstate Commerce Commission under Section 204 (a) (1) and (2) of the Motor Carrier Act, 1935, above quoted, to establish reasonable requirements with respect to the qualifications and maximum hours of service of employees of motor carriers, is "limited to those employees whose activities affect the safety of operation". The Supreme Court did not, however, in this decision attempt to be more specific, or to name precisely what employees fall within this definition. Defendant contends that since the Commission, up to the present time, has issued no regulations with respect to employees falling under the Motor Carrier Act except drivers of motor vehicles, the district courts are without jurisdiction to entertain a suit of this kind; that is to say, that whether a particular employee falls within the excepted class, namely, is one "whose activities affect the safety of operation", is a question of fact which must first be determined by the Commission, and that until such determination is made, it must be assumed that the plaintiff's hours of work are subject exclusively to the jurisdiction of the Commission and, therefore, fall within the exception of the Fair Labor Standards Act, above quoted. Defendant asserts that if this court fails to place the plaintiff in the class exempted from the operation of the Fair Labor Standards Act, and holds that he is entitled to back pay for overtime in accordance with the requirements of that Act, motor carriers throughout the country will be subjected to unexpected and unwarranted payroll expenses, directly contrary to the underlying purpose of the Motor Carrier Act. Defendant invokes the doctrine laid down in Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553, 9 Ann.Cas. 1075, to the effect that before a court may pass upon the reasonableness of interstate rates established by a carrier, there must first be a ruling by the Commission as to their reasonableness.

With this contention of the defendant we cannot agree. We do not consider that the principle laid down in the Abilene case, supra, is applicable to the situation before us. It is true that the precise question here presented was not adjudicated in United States v. American Trucking Associations, Inc., supra. There, the only question presented and decided was as to the power of the Interstate Commerce Commission under the Motor Carrier Act, 1935, to establish reasonable requirements with respect to the qualifications and maximum hours of service of employees of motor carriers, other than employees "whose activities affect the safety of operation." The suit was originally brought against the United States and the Commission by the Trucking Associations and certain motor common carriers. Shortly after the passage of the Motor Carrier Act in 1935, the Interstate Commerce Commission, on its own motion, proceeded to fix maximum hours of service for "employees whose functions in the operation of motor vehicles make such regulations desirable because of safety considerations." Ex parte No. MC-2, 3 M.C.C. 665, 667. Shortly thereafter the Fair Labor Standards Act of 1938 was enacted containing the provisions above quoted exempting from its terms "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 the Motor Carrier Act. Since this exemption directly raised the question as to the extent of the Commission's power or coverage of employees under the Motor Carrier Act, the Commission again examined the scope of its jurisdiction and in Ex parte MC-28, 13 M.C.C. 481, 489, again reached the conclusion that its powers under "section 204 (a) (1) and (2) is limited to prescribing qualifications and maximum hours of service for those employees * * * whose activities affect the safety of operation." The Wage and Hour Division of the Department of Labor arrived at the same result. Interpretative Bulletin No. 9, Wage & Hour Manual (1940) 168.

Thereupon the American Trucking Associations and others petitioned the Commission to disregard its report and order in Ex parte MC-28, but the Commission reaffirmed its original position, whereupon a three judge district court was petitioned to require the Commission to take jurisdiction and consider the establishment of qualifications and hours of service of all employees of common and contract carriers by motor vehicle. This court reversed the Commission, set aside its order and directed it to take jurisdiction of the appellees' petition. 31 F.Supp. 35. From this action of the lower court a direct appeal to the Supreme Court was granted resulting in the opinion already summarized. The Supreme Court was divided, five to four, in this decision. The lower court had also been divided.

Although an explanation has already been given of what led up to the decision of the Supreme Court in the American Trucking Associations, Inc., case, supra, it is appropriate to give the following complete chronology of events to the present time: (1) December 29, 1937, report and order of Interstate Commerce Commission in Ex parte No. MC-2, prescribing maximum hours of service for drivers only, of common and contract carriers by motor vehicle, 3 M.C.C. 665. (2) June 25, 1938, Fair Labor Standards Act of 1938 passed, 29 U.S.C.A. §§ 201-219. (3) March...