Robbins v. Zabarsky

• Decision Date: 07 May 1942
• Docket Number: No. 1781.,1781.
• Citation: 44 F. Supp. 867
• Parties: ROBBINS v. ZABARSKY et al.
• Court: U.S. District Court — District of Massachusetts

44 F. Supp. 867

ROBBINS v. ZABARSKY et al.

No. 1781.

District Court, D. Massachusetts.

May 7, 1942.

Maurice Mitchell, of Boston, Mass., for plaintiff.

Sterry R. Waterman, of St. Johnsbury, Vt., and Donald Stahl, of Boston, Mass., for defendants.

FORD, District Judge.

The plaintiff brings this action to recover unpaid wages and liquidated damages pursuant to Section 16(b) of the Fair Labor Standards Act, 29 U.S.C.A. § 216(b). The case comes before the court on the defendants' motion to dismiss the action because the complaint fails to state a claim against these defendants on which relief can be granted.

The complaint sets out that the defendants do business as co-partners under the firm name and style of St. Johnsbury Trucking Co., with offices in St. Johnsbury, Vermont, and Cambridge, Massachusetts, and that they were at all times hereinafter mentioned engaged in transporting goods, wares, and merchandise from one state to another; that the defendants employed about one hundred men and women in this business of interstate transportation; that the plaintiff was employed by the defendants as a mechanic and as a foreman of mechanics; that he was employed to repair and service the trucks and equipment of the defendants, which were used in transporting, shipping, and delivering goods in interstate commerce, and that he also was engaged as a foreman to superintend and direct other mechanics who repaired and serviced the trucks and equipment of the defendants used in interstate transportation; that although the plaintiff worked 63 hours in one week and 73½ hours in the next week at given hourly rates, the defendants failed to pay him for all hours worked in excess of 44, 42, and 40 hours (at intervals, the longest permissible week at regular rates of pay varied under the Fair Labor Standards Act) at a rate one and one-half times the regular hourly rate of pay, as is provided by Section 7 of the Fair Labor Standards Act, 29 U.S.C.A. § 207.

The defendants base their motion to dismiss on Section 13(b) of the Fair Labor Standards Act, 29 U.S.C.A. § 213(b), which provides that: "The provisions of section 207 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; * * *". Section 304(a) (1) of Title 49 provides that: "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 * * * qualifications and maximum hours of service of employees, * * *". Section 304(a) (2) gives the Commission power to make similar requirements of contract carriers and 304(a) (3) gives it such power over private carriers "if need therefor is found".

In United States et al. v. American Trucking Associations, Inc., et al, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345, the Supreme Court defined the power conferred on the Commission by Section 304. The court held that the grant of power to establish requirements as to maximum hours of service was limited to employees whose duties affect the safety of operation of interstate motor carriers.

The question in the instant case is, therefore, whether the plaintiff is an employee whose duties affect the safety of operation of the defendants' business. The complaint states he was employed as "a mechanic to repair and service the trucks and equipment of the defendants" and "as a foreman to superintend and direct other mechanics who repaired and serviced the trucks and equipment of the defendants". I believe that in such capacity it is clear that his duties would be such that the safety of the defendants' operations would be affected by his manner of performing them. Such essentials as adequate brakes and proper electrical equipment would be his responsibility. Carelessness on his part, either in performance or in supervising performance of service and repair jobs, might result in the creation of great hazards in the operation of the vehicles.

On March 4, 1941, the Interstate Commerce Commission itself, published a report in Ex Parte No. MC-2 and Ex Parte No. MC-3 to the effect that mechanics, loaders and drivers' helpers employed by common, contract, and private carriers perform duties which affect the safety of operation of motor vehicles and are, therefore, subject to the Commission's authority to prescribe qualifications and maximum hours of service pursuant to section 304(a) of the Interstate Commerce Act. This administrative interpretation of the Act, by the body entrusted with its enforcement, is entitled to great weight. United States v. American Trucking Associations, Inc., et al, supra; Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 324, 325, 53 S. Ct. 350, 77 L.Ed. 796. And in West v. Smoky Mountains Stages, Inc., D.C., 40 F.Supp. 296, where this question was raised, the court thought it too clear for extended discussion that the duties of a mechanic affected "safety of operations". (Cf. also Tinerella et al v. Des Moines Transportation Co. Inc., D.C., 41 F.Supp. 798, 800. It follows that a mechanic, or foreman of mechanics, is subject to the jurisdiction conferred on the Interstate Commerce Commission by Section 304 and hence is exempted by Section 13(b) from the operation of the Fair Labor Standards Act.

The plaintiff objects to dismissal of the complaint on the ground that the question whether he is within the exemption should not be decided on a motion to dismiss. I do not believe that this objection is well grounded. "Failure to state a claim" Rule 12(b), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, may be due to setting up too...