Walling v. Silver Fleet Motor Express

• Decision Date: 20 September 1946
• Docket Number: No. 828.,828.
• Citation: 67 F. Supp. 846
• Parties: WALLING, Administrator of Wage and Hour Div., U. S. Dept. of Labor, v. SILVER FLEET MOTOR EXPRESS, Inc.
• Court: U.S. District Court — Western District of Kentucky

67 F. Supp. 846

WALLING, Administrator of Wage and Hour Div., U. S. Dept. of Labor, v. SILVER FLEET MOTOR EXPRESS, Inc.

No. 828.

District Court, W. D. Kentucky, Louisville Division.

September 20, 1946.

William S. Tyson, Acting Sol., and Jeter S. Ray, Asst. Sol., both of Washington, D. C., Glenn M. Elliott, Acting Regional Atty., of Nashville, Tenn., George W. Jansen, Supervising Atty., of Washington, D. C., and David V. Manker, Atty., and John L. Young, Associate Atty., both of Nashville, Tenn., all of Department of Labor, for plaintiff.

James E. Fahey and Skaggs, Hays & Fahey, all of Louisville, Ky., for defendant.

MILLER, Circuit Judge.

This action was brought by the plaintiff, Administrator of the Wage and Hour Division, under Section 17 of the Fair Labor Standards Act of 1938, 29 U.S.C.A. §§ 201-219, to restrain the defendant, Silver Fleet Motor Express, Inc., from violating the provisions of Sections 15(a) (2) and 15 (a) (5) of the Act, 29 U.S.C.A. §§ 215(a) (2) and 215(a) (5). Those sections provide that it shall be unlawful for any person to violate the provisions of Section 6 or Section 7 of the Act, which relate to minimum wages and maximum hours, or to violate any of the provisions of Section 11 (c) of the Act which require the making and keeping of records of employees with respect to wages, hours and other conditions and practices of employment. The complaint alleges that the defendant has violated provisions of Section 7 of the Act in failing to pay certain of its employees overtime compensation as required by the Act, and the provisions of Section 11(c) of the Act in failing to make and preserve adequate and accurate records as required by the Act and regulations of the Administrator. The defendant admits that the employees involved are engaged in interstate commerce and are not being paid the overtime compensation required by the Act. It contends, however, that such employees are exempt from the provisions of the Act by reason of Section 13(b) (1) thereof, which provides that Section 7 of the Act shall not apply with respect to 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 204 of the Motor Carrier Act, 49 U.S.C.A. § 304. The defendant denies the plaintiff's claim that it has violated the record-keeping provisions of the Act.

Findings of Fact.

The defendant is engaged as a common carrier in the interstate transportation of goods by motor vehicle. It has branches located in six different states, including terminals at Louisville and Middlesboro, Kentucky; Chattanooga, Kingsport, Knoxville and Nashville, Tennessee; Cincinnati and Columbus, Ohio; Chicago, Illinois; Anderson, Columbus, Elwood, Fort Wayne, Indianapolis, La Fayette, Marion, Muncie and Seymour, Indiana; and Birmingham, Alabama. Throughout the system it has six garages which are located at Chicago, Illinois; Indianapolis, Indiana; Cincinnati, Ohio; Louisville, Kentucky; Nashville, Tennessee, and Middlesboro, Kentucky, in which about fifty employees are employed. The Company operates approximately 95 tractors, 184 trailers and 82 pick-up and delivery trucks. Freight is hauled in what is termed a "unit" which is composed of a tractor and a trailer, which are hooked together by means of a connection termed a "fifth wheel." The general office of the Company is located at Louisville, Kentucky.

The defendant's Louisville garage can accommodate ten vehicles at a time for repair work. Twenty-three employees work in that garage. It has a body shop adjoining the garage which can service two or three vehicles at a time. Each garage is staffed with a superintendent or a garage foreman, under whose direct jurisdiction there are mechanics, mechanics' helpers, service mechanics, trailer mechanics, tire mechanics and body mechanics, representing various grades of mechanics in accordance with their expertness. Each mechanic is skilled to be versatile so as to be able to take over the duties of other employees in the shop when such employee may be absent. The Company's maintenance program is divided into six different classifications, as follows: (1) General overhaul work, which is work done on the vehicle itself when mechanical defects develop, consisting of such work as repairing broken crankshafts and pistons. (2) General service work, which consists of repairing less serious mechanical failures, which in most instances are brought to the attention of the maintenance department by drivers of the vehicles by means of daily gasoline and oil card records kept by all drivers. This work includes defective brakes, defective lights, defective steering, defective springs, minor motor failures, improperly functioning carburetors and defective tires. (3) Preventive maintenance program, which includes an A inspection given every seven days, a B inspection given every fourteen days and a C inspection given every six months. These inspections are given by the mechanics, mechanics' helpers and service mechanics and are necessary in order to avoid breakdowns and accidents on the highway. (4) Safety lane program. Even though each trailer and each tractor has been previously inspected, after they are hitched together, they are given a final safety inspection in the safety lanes, through which they pass, in order to be sure that the hitch or connection has been properly made. This includes not only the proper connection of the fifth wheel but also proper connection of the air hose and light wires, which involve the proper operation of the trailer brakes and trailer lights. This inspection also includes inspection of windshield wiper and horn, inspection of transmissions and differentials, and the careful inspection of tires, wheels, lugs and bolts. (5) Tire maintenance. When tractors and trailers are driven into the terminal it is the duty of the tire mechanic to inspect the condition of all tires, lugs, bolts and rims and a notation is made by him with respect to any tire that has been damaged enroute or which should be removed for recapping, or which contains a leaky valve, and such defects are later corrected by replacing the damaged or defective tire with a good one drawn from the Company's stock in its garage. Tire mechanics do both the repair work and the work involved in switching the tires. (6) Trailer repairs and maintenance. Trailer mechanics inspect the wheels, wheel bearings, brakes, springs, axles, and auxiliary wheels and the condition of the fifth wheel. Body mechanics inspect the fifth wheel, the upper fifth wheel, all doors, floors, roofs, side panels, rub rails, and moldings. Proper maintenance of the bodies of the trailers is a great contributing factor to the safety of operation. If the doors are not properly fitted and maintained they may fly open and strike objects on the highway. If the body of the trailer is faulty freight may fall through the floor and become engaged in the wheels of the trailer. Defective roofs may cause leaks with resulting damage to lights and to the freight itself. The trailers are first painted silver and are then streamlined with black so that they can readily be seen from a distance. Safety markings are painted on the rear of the trailers which enables them to be seen at great distances both at night and day. Visibility is pronounced due to the combination of colors, in that the silver at night acts as a reflector and the black as an outline. One employee, William Rupple, called a letterer, does all the painting and gives his entire time to such jobs. The work of the body mechanic in the body shop is almost entirely repair work, repairing the defects discovered from the inspections above referred to and damage resulting from accidents. During the period of 1930-1945 only 10 new bodies were constructed. In some instances extensive damage requires extensive repairs or replacements, although some of the more extensive repair work is done by private garages. The majority of the employees' time in the different classifications above referred to is spent in making repairs, such as have been detailed above.

The following employees of the defendant worked for the defendant as indicated in each instance: George Prewitt and Ben H. Stewart — mechanics' helpers; Richard Butler, Harvey Goodman and Allen Richard Schmidt — service mechanics; Richard Dowery, Merrill Fultz and Emil Watts— tire mechanics; William Moore and Lavour Wenning — trailer mechanics; John Klemenz, T. H. McKune, Russell Miller and Ernest Railing — body mechanics. Arnold Meeks worked as a driver for the defendant except during the period of July 8, 1944, to September 22, 1944, during which period he worked in the body shop.

The freight transported by the defendant is loaded on the defendant's vehicles and taken off of its vehicles at its different terminals. Each terminal is in the charge of a terminal superintendent. In the larger terminals he has assistants, one of whom assists in handling the platform work and the city drivers. At each terminal there are in addition to the large tractor-trailer units one or more semi-tractor trailer units or street trucks which are used for city collection and delivery purposes, whose operators are known as city drivers. The city driver superintendent has charge of that work. At the Louisville terminal there is a superintendent of city loaders who has complete charge of the men who operate solely on the platform. He divides these men into crews, each crew being made up of a chief loader and three loaders. He directs the activities of the crew through the chief loader, who has the supervision of the crew. The chief loader and his crew perform the actual work of loading and unloading the vehicles that carry the freight between the cities. The usual procedure in loading is as follows: A trailer is parked at the platform. The chief loader reports to the superintendent of loaders that his crew...