Boutell v. Walling, 327 U.S. 463 (1946)

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Case:   BOUTELL V. WALLING

Case #: 327US463


NO. 73.  ARGUED OCTOBER 9, 1945.  - DECIDED FEBRUARY 25, 1946.  - 148
F.2D 329, AFFIRMED. 


1.  EMPLOYEES OF A GARAGE WHO ARE ENGAGED EXCLUSIVELY IN REPAIRING AND
MAINTAINING VEHICLES OF A SINGLE INTERSTATE MOTOR CARRIER COME WITHIN
THE COVERAGE OF THE FAIR LABOR STANDARDS ACT.  P. 466. 

2.  THEY ARE NOT ENGAGED IN A "SERVICE ESTABLISHMENT THE GREATER PART
OF WHOSE  ..  SEERVICING IS IN INTRASTATE COMMERCE" WITHIN THE
EXEMPTION PROVIDED BY SEC. 13(A)(2) OF THE FAIR LABOR STANDARDS ACT. 
P. 467. 

3.  NOR DO THEY COME WITHIN SEC. 13(B)(1) OF THE FAIR LABOR STANDARDS
ACT EXEMPTING "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, 1935," SINCE THEIR EMPLOYER IS NOT A CARRIER.  P. 467. 

4.  THE POWER OF THE INTERSTATE COMMERCE COMMISSION TO ESTABLISH
MAXIMUM HOURS OF SERVICE PURSUANT TO THE PROVISIONS OF SEC. 204 OF THE
MOTOR CARRIER ACT (PART II OF THE INTERSTATE COMMERCE ACT) IS LIMITED
TO EMPLOYEES OF "CARRIERS."  P. 467. 

5.  ADMINISTRATIVE INTERPRETATIONS OF THE FAIR LABOR STANDARDS ACT BY
THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION OF THE DEPARTMENT OF
LABOR AND THE INTERSTATE COMMERCE ACT BY THE INTERSTATE COMMERCE
COMMISSION ARE ENTITLED TO GREAT WEIGHT.  P. 471. 

BOUTELL ET AL., DOING BUSINESS AS F.J. BOUTELL SERVICE CO., V.
WALLING, WAGE AND HOUR ADMINISTRATOR. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

IN A SUIT BROUGHT BY THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION
OF THE DEPARTMENT OF LABOR, THE DISTRICT COURT ENJOINED PETITIONERS
FROM VIOLATING THE MAXIMUM HOURS PROVISIONS OF SEC. 7 OF THE FAIR LABOR
STANDARDS ACT.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  148 F.2D 329. 
THIS COURT GRANTED CERTIORARI.  325 U.S. 849.  AFFIRMED, P. 472. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS SUIT WAS BROUGHT IN THE DISTRICT COURT OF THE UNITED STATES FOR
THE EASTERN DISTRICT OF MICHIGAN, BY THE ADMINISTRATOR OF THE WAGE AND
HOUR DIVISION, UNITED STATES DEPARTMENT OF LABOR, TO ENJOIN PETITIONERS
FROM VIOLATING THE MAXIMUM HOURS PROVISIONS  FN1  OF THE FAIR LABOR
STANDARDS ACT OF 1938.  52 STAT. 1060, 29 U.S.C. SEC. 201, ET SEQ. 

PETITIONERS ARE TWO OF FOUR PARTNERS DOING BUSINESS AS F.J. BOUTELL
SERVICE COMPANY, THE OTHER TWO NOT BEING SUBJECT TO THE JURISDICTION OF
THE DISTRICT COURT.  THE FOUR PARTNERS ARE THE SOLE STOCKHOLDERS OF THE
F.J. BOUTELL DRIVE-AWAY COMPANY, A MICHIGAN CORPORATION, ENGAGED IN THE
TRANSPORTATION OF AUTOMOBILES AND ARMY EQUIPMENT IN INTERSTATE
COMMERCE. 

THE EMPLOYEES OF THE SERVICE COMPANY INVOLVED IN THIS SUIT ARE
MECHANICS ENGAGED IN GREASING, REPAIRING, SERVICING AND MAINTAINING THE
TRANSPORTATION EQUIPMENT OWNED AND OPERATED BY THE DRIVE-AWAY COMPANY. 
THE PARTIES HAVE STIPULATED AND THE TRIAL COURT HAS FOUND THAT THE
SERVICE COMPANY IS ENGAGED EXCLUSIVELY IN RENDERING SUCH SERVICE TO THE
DRIVE-AWAY COMPANY AND SUCH CORPORATION "IS AN ENTITY SEPARATE AND
DISTINCT FROM" THE SERVICE COMPANY. 

THE CASE PRESENTS TWO QUESTIONS:  (1) WHETHER THE EMPLOYEES OF THE
SERVICE COMPANY ARE "ENGAGED IN ANY RETAIL OR SERVICE ESTABLISHMENT THE
GREATER PART OF WHOSE SELLING OR SERVICING IS IN INTRASTATE COMMERCE"
WITHIN THE MEANING OF THE EXEMPTION CLAUSE, SEC. 13(A)(2); FN2  AND (2)
WHETHER THEY COME WITHIN THE EXEMPTION CLAUSE, SEC. 13(B)(1), WHICH
EXEMPTS FROM SEC. 7  FN3  OF THE ACT "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 FN4  OF THE MOTOR CARRIER ACT, 1935."  52 STAT. 1068, 29
U.S.C. SEC. 213(B)(1).  THE DISTRICT COURT RULED AGAINST PETITIONERS ON
BOTH QUESTIONS AND GRANTED THE INJUNCTION SOUGHT BY THE ADMINISTRATOR. 
THE CIRCUIT COURT OF APPEALS AFFIRMED ON BOTH GROUNDS.  148 F.2D 329. 
WE AGREE WITH THOSE CONCLUSIONS. 

THE AMENDED FINDINGS OF FACT AGREED TO BY THE PARTIES INCLUDE THE
STATEMENT THAT THE PETITIONERS' EMPLOYEES "INVOLVED IN THIS PROCEEDING
ARE MECHANICS ENGAGED IN GREASING, REPAIRING, SERVICING AND MAINTAINING
THE TRANSPORTATION EQUIPMENT OWNED AND OPERATED BY THE F.J. BOUTELL
DRIVE-AWAY COMPANY  .."  NNO CLAIM IS MADE THAT THESE EMPLOYEES ARE NOT
ENGAGED IN INTERSTATE COMMERCE WITHIN THE MEANING OF SEC. 7 OF THE FAIR
LABOR STANDARDS ACT.  THEY ARE WELL WITHIN THE REQUIREMENT THAT THEY BE
"ACTUALLY IN OR SO CLOSELY RELATED TO THE MOVEMENT OF THE COMMERCE AS
TO BE A PART OF IT."  MCLEOD V. THRELKELD, 319 U.S. 491, 497.  FN5 

IN ANSWER TO THE FIRST QUESTION, THE RECORD SHOWS THAT THESE
EMPLOYEES DO NOT COME WITHIN THE EXEMPTION STATED IN SEC. 13(A)(2). 
THIS IS SO BECAUSE THEIR EMPLOYER, THE SERVICE COMPANY, SUPPLIES ITS
SERVICES, INCLUDING THEIR SERVICES, EXCLUSIVELY TO THE DRIVE-AWAY
COMPANY WHICH IN TURN USES THOSE SERVICES IN INTERSTATE COMMERCE.  THE
DRIVE-AWAY COMPANY DOES NOT USE THEIR SERVICES FOR ITS OWN PURPOSES AS
AN ULTIMATE CONSUMER, BEYOND THE END OF THE FLOW OF GOODS IN INTERSTATE
COMMERCE.  ACCORDINGLY, THE EMPLOYEES OF THE SERVICE COMPANY ARE NOT
ENGAGED IN A RETAIL OR SERVICE ESTABLISHMENT WITHIN THE MEANING OF SEC.
13(A)(2) AS INTERPRETED IN ROLAND ELECTRICAL CO. V. WALLING, 326 U.S.
657, AND MARTINO V. MICHIGAN WINDOW CLEANING CO., 327 U.S. 173. 
FURTHERMORE, SUBSTANTIALLY ALL OF THE SERVICING DONE BY THE SERVICE
COMPANY IS THUS DONE IN INTERSTATE COMMERCE, WHEREAS SEC. 13(A)(2)
REQUIRES THE GREATER PART OF IT TO BE DONE IN INTRASTATE COMMERCE IF
THE EMPLOYEES RENDERING IT ARE TO BE EXEMPTED UNDER THAT PROVISION. 

THE QUESTION WHETHER THE EMPLOYEES OF THE SERVICE COMPANY ARE TO BE
EXEMPTED BY VIRTUE OF SEC. 13(B)(1) TURNS UPON WHETHER THE INTERSTATE
COMMERCE COMMISSION HAS THE "POWER TO ESTABLISH" MAXIMUM HOURS OF
SERVICE FOR THEM UNDER SEC. 204(A)(1), (2) OR (3) OF THE MOTOR CARRIER
ACT, 1935, FN6  NOW OFFICIALLY CITED AS PART II OF THE INTERSTATE
COMMERCE ACT, 54 STAT. 919, 49 U.S.C. SEC. 301, ET SEQ. WHATEVER MAY BE
THE PRECISE SCOPE OF THE COMMISSION'S "POWER TO ESTABLISH" HOURS OF
SERVICE, WE HOLD THAT THE COMMISSION DOES NOT HAVE THAT POWER OVER THE
MEN HERE CONCERNED BECAUSE THE COMMISSION'S JURISDICTION IS LIMITED TO
EMPLOYEES OF "CARRIERS" AND THE RECORD HERE SHOWS THAT THE MEN IN
QUESTION ARE EMPLOYEES OF THE SERVICE COMPANY, WHICH IS NOT A CARRIER,
RATHER THAN OF THE DRIVE-AWAY COMPANY, WHICH IS A CARRIER.  THIS IS
TRUE ALTHOUGH THE WORK THESE EMPLOYEES DO IS ALL SUPPLIED TO THE DRIVE
AWAY COMPANY THROUGH THE SERVICE COMPANY. 

THE WAGE AND HOUR DIVISION HAS FOUND TO ITS SATISFACTION THE FACTS
NECESSARY TO PLACE THESE EMPLOYEES OF THE SERVICE COMPANY UNDER ITS
JURISDICTION FOR THE PURPOSES OF THE FAIR LABOR STANDARDS ACT.  THE
RECORD CONTAINS NO SUGGESTION THAT THE INTERSTATE COMMERCE COMMISSION
OR ANY OTHER ADMINISTRATIVE BODY HAS FOUND THAT THESE EMPLOYEES OF THE
SERVICE COMPANY ARE OR SHOULD BE TREATED AS EMPLOYEES OF THE DRIVE-AWAY
COMPANY FOR THE PURPOSES OF THE INTERSTATE COMMERCE ACT.  THIS CASE,
THEREFORE, IS DECIDED UPON THE BASIS THAT THE PARTIES HAVE STIPULATED
AND THE TRIAL COURT HAS FOUND THAT THESE EMPLOYEES ARE EMPLOYEES OF THE
PARTNERSHIP, THE SERVICE COMPANY, WHICH IS THE RELATIONSHIP ESTABLISHED
FOR THEM BY THE PETITIONERS AS THEIR EMPLOYERS.  SEE SCHENLEY
DISTILLERS CORP. V. UNITED STATES, 326 U.S. 432, FOR A CASE GIVING
EFFECT TO CERTAIN OTHER CONSEQUENCES UNDER THE MOTOR CARRIER ACT OF A
CORPORATE ARRANGEMENT CHOSEN BY THE PERSONS CONCERNED AS A MEANS OF
CARRYING ON THEIR BUSINESS.  SEE ALSO HIGGINS V. SMITH, 308 U.S. 473,
477, FOR A DIFFERENT RESULT UNDER OTHER CIRCUMSTANCES. 

IN THE ABSENCE OF POWER IN THE INTERSTATE COMMERCE COMMISSION TO
ESTABLISH THE MAXIMUM HOURS OF SERVICE OF THESE EMPLOYEES, THE
PROVISIONS OF THE FAIR LABOR STANDARDS ACT AS TO THEIR MAXIMUM HOURS OF
EMPLOYMENT REMAIN APPLICABLE TO THEM. 

IT APPEARS FROM THE FACE OF THE MOTOR CARRIER ACT THAT SEC. 204
REFERS ONLY TO THE REGULATION OF "CARRIERS."  MOREOVER, SECTION 226 OF
THE ACT (FORMERLY NUMBERED 225, 54 STAT. 929, 49 U.S.C. SEC. 325),
WHICH AUTHORIZES INVESTIGATIONS BY THE COMMISSION AS A BASIS FOR THE
REGULATION OF THE MAXIMUM HOURS OF SERVICE OF EMPLOYEES UNDER SEC. 204,
REFERS ONLY TO INVESTIGATIONS OF THE "MAXIMUM HOURS OF SERVICE OF
EMPLOYEES OF ALL MOTOR CARRIERS AND PRIVATE CARRIERS OF PROPERTY BY
MOTOR VEHICLE  .."  FFN7  THE LEGISLATIVE HISTORY OF THE SECTION IS
REVIEWED IN UNITED STATES V. AMERICAN TRUCKING ASSNS., 310 U.S. 534,
544-550. 

THE INTERSTATE COMMERCE COMMISSION HAS WRITTEN MANY DECISIONS
DEFINING THE LIMITS OF ITS AUTHORITY TO PRESCRIBE QUALIFICATIONS AND
MAXIMUM HOURS OF SERVICE FOR EMPLOYEES OF MOTOR CARRIERS UNDER SEC.
204(A)(1), (2) AND (3), BUT THROUGHOUT THESE DECISIONS IT APPARENTLY
HAS ASSUMED THAT ITS JURISDICTION IS LIMITED TO EMPLOYEES OF "CARRIERS"
WHICH IN TURN ARE UNDER THE JURISDICTION OF THE COMMISSION.  IT HAS,
FOR EXAMPLE, RECOGNIZED ITS POWER TO ESTABLISH MAXIMUM HOURS OF SERVICE
FOR AUTOMOBILE MAINTENANCE MECHANICS OF "CARRIERS"  FN8  BUT AT THE
SAME TIME HAS SAID - 

"BY FAR THE LARGER PROPORTION OF THE CARRIERS SUBJECT TO OUR
JURISDICTION OPERATE LESS THAN 10 VEHICLES AND DO NOT EMPLOY MECHANICS
TO REPAIR THEIR VEHICLES, BUT ON THE CONTRARY HAVE SUCH WORK DONE IN
COMMERCIAL GARAGES.  WE HAVE, OF COURSE, NO JURISDICTION OVER EMPLOYEES
WORKING IN COMMERCIAL GARAGES."  EX PARTE NO. MC-2, IN THE MATTER OF
MAXIMUM HOURS OF SERVICE OF MOTOR CARRIER EMPLOYEES, 28 M.C.C. 125,
132. 

THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION OF THE DEPARTMENT OF
LABOR HAS INTERPRETED SEC. 13(B)(1) OF THE FAIR LABOR STANDARDS ACT
CONSISTENTLY WITH THE INTERPRETATION GIVEN TO IT BY THE INTERSTATE
COMMERCE COMMISSION.  FN9  THE INTERPRETATION OF THIS ACT BY EACH OF
THESE AGENCIES IS ENTITLED TO GREAT WEIGHT.  UNITED STATES V. AMERICAN
TRUCKING ASSNS., 310 U.S. 534, 549. 

THROUGHOUT THE DISCUSSION OF THESE SECTIONS BY THIS COURT IN UNITED
STATES V. AMERICAN TRUCKING ASSNS., SUPRA, AND IN SOUTHLAND GASOLINE
CO. V. BAYLEY, 319 U.S. 44, IT IS ASSUMED THAT THEY REFER TO EMPLOYEES
OF "CARRIERS" AND OF "MOTOR VEHICLE OPERATORS" WHICH ARE THEMSELVES
UNDER THE JURISDICTION OF THE INTERSTATE COMMERCE COMMISSION, AND THERE
IS NOTHING IN EITHER CASE TO INDICATE AN INTERPRETATION BY THIS COURT
THAT THE EXEMPTION PRESCRIBED IN SEC. 13(B)(1) EXTENDS TO WORKERS WHOSE
SERVICES AFFECT THE SAFETY OF OPERATIONS OF MOTOR VEHICLE CARRIERS BUT
WHO ARE NOT THEMSELVES EMPLOYEES OF A CARRIER. 

IN THIS VIEW OF THIS CASE, IT IS NOT NECESSARY TO DETERMINE WHAT KIND
OF A CARRIER THE DRIVE-AWAY COMPANY IS OR EVEN WHETHER IT IS A CARRIER
WITHIN THE MEANING OF THE MOTOR CARRIER ACT BECAUSE THE EMPLOYEES
INVOLVED IN THIS CASE ARE NOT ITS EMPLOYEES.  SIMILARLY, IT IS NOT
NECESSARY TO DETERMINE WHICH OF THE EMPLOYEES OF THE SERVICE COMPANY DO
WORK WHICH AFFECTS THE SAFETY OF THE OPERATION OF MOTOR VEHICLES
BECAUSE THAT CLASSIFICATION APPLIES TO EMPLOYEES WHOSE HOURS ARE
REGULATED BY THE INTERSTATE COMMERCE COMMISSION AND NOT TO THOSE WHOSE
HOURS ARE REGULATED BY THE FAIR LABOR STANDARDS ACT. 

FOR THESE REASONS WE FIND THAT PETITIONERS' EMPLOYEES COME WITHIN THE
COVERAGE OF THE FAIR LABOR STANDARDS ACT OF 1938 AND NOT WITHIN THE
EXEMPTIONS STATED IN EITHER SEC. 13(A)(2) OR SEC. 13(B)(1) OF THAT ACT,
AND THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS, THEREFORE, IS
AFFIRMED. 

FN1  "SEC.  7.  (A) NO EMPLOYER SHALL, EXCEPT AS OTHERWISE PROVIDED
IN THIS SECTION, EMPLOY ANY OF HIS EMPLOYEES WHO IS ENGAGED IN COMMERCE
OR IN THE PRODUCTION OF GOODS FOR COMMERCE - 

(1)  FOR A WORKWEEK LONGER THAN FORTY-FOUR HOURS DURING THE FIRST
YEAR FROM THE EFFECTIVE DATE OF THIS SECTION, 

(2)  FOR A WORKWEEK LONGER THAN FORTY-TWO HOURS DURING THE SECOND
YEAR FROM SUCH DATE, OR 

(3)  FOR A WORKWEEK LONGER THAN FORTY HOURS AFTER THE EXPIRATION OF
THE SECOND YEAR FROM SUCH DATE, UNLESS SUCH EMPLOYEE RECEIVES
COMPENSATION FOR HIS EMPLOYMENT IN EXCESS OF THE HOURS ABOVE SPECIFIED
AT A RATE NOT LESS THAN ONE AND ONE-HALF TIMES THE REGULAR RATE AT
WHICH HE IS EMPLOYED."  52 STAT. 1063, 29 U.S.C. SEC. 207(A). 

FN2  "SEC.  13.  (A) THE PROVISIONS OF SECTIONS 6 AND 7 SHALL NOT
APPLY WITH RESPECT TO  ..  (22) ANY EMPLOYEE ENGAGED IN ANY RETAIL OR
SERVICE ESTABLISHMENT THE GREATER PART OF WHOSE SELLING OR SERVICING IS
IN INTRASTATE COMMERCE; .."  552 STAT. 1067, 29 U.S.C. SEC. 213(A)(2). 

FN3  SEE NOTE 1 SUPRA. 

FN4  "SEC.  204(A) IT SHALL BE THE DUTY OF THE COMMISSION - 

"(1)  TO REGULATE COMMON CARRIERS BY MOTOR VEHICLE AS PROVIDED IN
THIS PART, 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 PART, 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. 

"(3)  TO ESTABLISH FOR PRIVATE CARRIERS OF PROPERTY BY MOTOR VEHICLE,
IF NEED THEREFOR IS FOUND, REASONABLE REQUIREMENTS TO PROMOTE SAFETY OF
OPERATION, AND TO THAT END PRESCRIBE QUALIFICATIONS AND MAXIMUM HOURS
OF SERVICE OF EMPLOYEES, AND STANDARDS OF EQUIPMENT..."   49 STAT. 546,
49 U.S.C. SEC. 304(A)(1)(2)(3). 

FN5  OVERSTREET V. NORTH SHORE CORP., 318 U.S. 125, 130; OVERNIGHT
MOTOR CO. V. MISSEL, 316 U.S. 572, 574.  SEE ALSO UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT, NEW YORK CENTRAL R. CO. V. MARCONE, 281 U.S.
345, 349; PEDERSEN V. DELAWARE, L. & W.R. CO., 229 U.S. 146, 150; NEW
YORK, N.H. & H.R. CO. V. WALSH, 223 U.S. 1, 6.  COMPARE SHANKS V.
DELAWARE, L. & W.R. CO., 239 U.S. 556, 560. 

FN6  SEE NOTE 4 SUPRA. 

FN7  "SEC.  225.  THE COMMISSION IS HEREBY AUTHORIZED TO INVESTIGATE
AND REPORT ON THE NEED FOR FEDERAL REGULATION OF THE SIZES AND WEIGHT
OF MOTOR VEHICLES AND COMBINATIONS OF MOTOR VEHICLES AND OF THE
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES OF ALL MOTOR
CARRIERS AND PRIVATE CARRIERS OF PROPERTY BY MOTOR VEHICLE; AND IN SUCH
INVESTIGATION THE COMMISSION SHALL AVAIL ITSELF OF THE ASSISTANCE OF
ALL DEPARTMENTS OR BUREAUS OF THE GOVERNMENT AND OF ANY ORGANIZATION OF
MOTOR CARRIERS HAVING SPECIAL KNOWLEDGE OF ANY SUCH MATTER."  49 STAT.
566, 49 U.S.C. SEC. 325, RENUMBERED AS SEC. 226 BY 54 STAT. 929.    IN
DISCUSSING SEC. 204(A)(1), (2) AND (3) AND SEC. 225 SENATOR WHEELER,
SPONSOR OF THE BILL, SAID IN EXPLANATION OF IT - 

"..  THHE COMMITTEE AMENDED PARAGRAPHS (1) AND (2) TO CONFER POWER ON
THE COMMISSION TO ESTABLISH REASONABLE REQUIREMENTS WITH RESPECT TO THE
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES OF COMMON AND
CONTRACT CARRIERS, THUS RESTORING PROVISIONS THAT WERE IN THE RAYBURN
BILL, INTRODUCED IN THE SEVENTY-THIRD CONGRESS...     "IN ORDER TO MAKE
THE HIGHWAYS MORE SAFE, AND SO THAT COMMON AND CONTRACT CARRIERS MAY
NOT BE UNDULY PREJUDICED IN THEIR COMPETITION WITH PEDDLER TRUCKS AND
OTHER PRIVATE OPERATORS OF MOTOR TRUCKS, A PROVISION WAS ADDED IN
SUBPARAGRAPH 3 GIVING THE COMMISSION AUTHORITY TO ESTABLISH SIMILAR
REQUIREMENTS WITH RESPECT TO THE QUALIFICATIONS AND HOURS OF SERVICE OF
THE EMPLOYEES OF SUCH OPERATORS.  THE EXERCISE OF THIS POWER WITH
RESPECT TO THE THREE CLASSES OF CARRIERS IS INTENDED TO BE CONTINGENT
UPON THE RESULTS OF THE COMPREHENSIVE INVESTIGATION OF THE NEED FOR
REGULATION OF THIS KIND PROVIDED FOR IN SECTION 225  ..."   79 CONG.
REC. 5652.  SEE ALSO, P. 5660. 

IN THE HOUSE OF REPRESENTATIVES, REPRESENTATIVE PETTENGILL READ THE
FOLLOWING OBSERVATION MADE BY JOSEPH B. EASTMAN OF THE INTERSTATE
COMMERCE COMMISSION - 

"THE BILL  ..  GIIVES THE COMMISSION AUTHORITY TO PRESCRIBE MAXIMUM
HOURS OF SERVICE FOR THE EMPLOYEES OF COMMON CARRIERS, CONTRACT
CARRIERS, AND PRIVATE CARRIERS OF PROPERTY  ..."   79 CONG. REC.
12,229.  SEE ALSO, S. REP. NO. 482, 74TH CONG., 1ST SESS. (1935) P. 1. 

FN8  "OUR FINDINGS OF FACT AND CONCLUSIONS OF LAW ARE AS FOLLOWS: 

"FINDINGS OF FACT.  - 1.  THAT MECHANICS EMPLOYED BY COMMON AND
CONTRACT CARRIERS AND PRIVATE CARRIERS OF PROPERTY BY MOTOR VEHICLE,
SUBJECT TO PART II OF THE INTERSTATE COMMERCE ACT, DEVOTE A LARGE PART
OF THEIR TIME TO ACTIVITIES WHICH DIRECTLY AFFECT THE SAFETY OF
OPERATION OF MOTOR VEHICLES IN INTERSTATE OR FOREIGN COMMERCE... 


"CONCLUSIONS OF LAW.  -  .. 

""3.  THAT WE HAVE POWER, UNDER SECTION 204(A) OF SAID PART II, TO
ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE FOR THE CLASSES
OF EMPLOYEES COVERED BY FINDINGS OF FACT NUMBERED 1, 2, AND 3 ABOVE,
(MECHANICS, LOADERS AND HELPERS EMPLOYED BY CARRIERS) AND THAT WE HAVE
NO SUCH POWER OVER ANY OTHER CLASSES OF EMPLOYEES, EXCEPT DRIVERS."  EX
PARTE NO. MC-2, 28 M.C.C. 125, 138-139.  SEE ALSO EX PARTE NO. MC-2, 3
M.C.C. 665, 667; 6 M.C.C. 557; 11 M.C.C. 203; EX PARTE NO. MC-28,
JURISDICTION OVER EMPLOYEES OF MOTOR CARRIERS, 13 M.C.C. 481, 488; EX
PARTE NO. MC-3, MOTOR CARRIER SAFETY REGULATIONS - PRIVATE CARRIERS, 23
M.C.C. 1, 8. 

FN9  SEE INTERPRETATIVE BULLETIN NO. 9, WAGE AND HOUR DIVISION,
OFFICE OF THE ADMINISTRATOR, ORIGINALLY ISSUED MARCH, 1939, 5TH REV.,
OCTOBER, 1943.  2 C.C.H. LABOR LAW SERVICE, P32,109.  WHERE MOTOR
VEHICLE DRIVERS OR MECHANICS ARE EMPLOYED BY COMPANIES ENGAGED IN
CERTAIN TYPES OF INTERSTATE TRANSPORTATION OVER WHICH THE INTERSTATE
COMMERCE COMMISSION DISCLAIMS JURISDICTION, THEY ARE HELD TO BE COVERED
BY THE FAIR LABOR STANDARDS ACT.  FOR EXAMPLE, IF SUCH EMPLOYEES ARE
ENGAGED IN THE TRANSPORTATION IN INTERSTATE COMMERCE OF CONSUMABLE
GOODS, SUCH AS FOOD, COAL AND ICE, TO RAILROADS AND DOCKS FOR USE IN
TRAINS AND STEAMSHIPS, JURISDICTION OVER THEM IS DISCLAIMED BY THE
COMMISSION BUT IS ACCEPTED BY THE WAGE AND HOUR DIVISION AS COVERED BY
THE FAIR LABOR STANDARDS ACT.  INTERPRETATIVE BULLETIN NO. 9, SUPRA,
PAR. 6(B).  THE WAGE AND HOUR DIVISION ALSO ACCEPTS JURISDICTION OVER
EMPLOYEES ENGAGED IN THE TRANSPORTATION OF MAIL IN INTERSTATE COMMERCE
WHO ARE EMPLOYED, NOT BY THE CARRIER, BUT BY A CONTRACTOR DEALING
DIRECTLY WITH THE POST OFFICE DEPARTMENT.  ID., PAR. 7(B). 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I AGREE THAT THESE EMPLOYEES WOULD BE COVERED BY THE FAIR LABOR
STANDARDS ACT BUT FOR THE EXEMPTION CONTAINED IN SEC. 13(B)(1).  THAT
SUBSECTION EXEMPTS FROM SEC. 7 OF THE ACT "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, 1935  .." 


THERE IS NO DOUBT THAT THE INTERSTATE COMMERCE COMMISSION HAS THE
POWER TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS FOR EMPLOYEES OF A
CARRIER WHO ARE MECHANICS ENGAGED IN GREASING, REPAIRING, SERVICING,
AND MAINTAINING ITS TRANSPORTATION EQUIPMENT.  IN THE MATTER OF MAXIMUM
HOURS OF SERVICE OF MOTOR CARRIER EMPLOYEES, 28 M.C.C. 125.  I THINK
THAT POWER WOULD STILL EXIST IF THE CARRIER SEPARATELY INCORPORATED ITS
GARAGE.  THIS AFFILIATED GARAGE IS NOT LIKE AN INDEPENDENT COMMERCIAL
GARAGE.  IT IS STILL A PART OF THE CARRIER'S BUSINESS - NO MORE
SEPARATE OR DISTINCT THAN ANY OTHER DEPARTMENT.  THE SAME PEOPLE OWN
IT, OPERATE IT, AND MANAGE IT.  IF THE INTERSTATE COMMERCE COMMISSION,
ACTING UNDER SEC. 204 OF THE MOTOR CARRIER ACT OF 1935, HAD UNDERTAKEN
TO ESTABLISH THE QUALIFICATIONS AND MAXIMUM HOURS FOR THESE MECHANICS,
I CANNOT BELIEVE THAT WE WOULD ALLOW ITS JURISDICTION TO BE DEFEATED BY
THAT DEVICE, WHATEVER MAY HAVE BEEN THE REASON FOR THE SEPARATE
INCORPORATION OF THE GARAGE.  FOR THESE MECHANICS WERE, IN THE
PRACTICAL SENSE, EMPLOYEES OF THE CARRIER AFTER, AS WELL AS BEFORE,
INCORPORATION.  AND THE EXEMPTION CONTAINED IN SEC. 13(B)(1) OF THE
FAIR LABOR STANDARDS ACT IS DEPENDENT, NOT ON THE EXERCISE BY THE
INTERSTATE COMMERCE COMMISSION OF ITS POWER, BUT ON THE EXISTENCE OF
THAT POWER.  FN1  THE POWER WHICH CONGRESS GRANTED THE INTERSTATE
COMMERCE COMMISSION TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS FOR
MECHANICS SHOULD NOT BE ALLOWED TO BE DEFEATED BY ARRANGEMENTS BETWEEN
PARTIES WHICH, FOR CERTAIN PURPOSES, MAY ESTOP THEM FROM ASSERTING THAT
TWO CORPORATIONS IN FORM ARE ONE IN SUBSTANCE. 

THIS PARTICULAR EXEMPTION MAY NOT BE A WISE ONE.  BUT WE MUST TAKE
THE LAW AS IT IS WRITTEN.  THE POLICY BEHIND THE EXEMPTION IS DEFEATED,
IF MERE LEGAL FORMS ARE ALLOWED TO NULLIFY THE POWER OF THE INTERSTATE
COMMERCE COMMISSION TO DEAL WITH THE PROBLEM OF SAFETY.  AS THE
COMMISSION SAID, "..  THHE CAREFULLY SUPERVISED WORK OF SKILLED
MECHANICS IS A MOST IMPORTANT FACTOR IN THE PREVENTION OF ACCIDENTS,
AND THEREFORE IN THE PROMOTION OF HIGHWAY SAFETY."  IN THE MATTER OF
MAXIMUM HOURS OF SERVICE OF MOTOR CARRIER EMPLOYEES, SUPRA, P. 133.  WE
SHOULD REFUSE TO WHITTLE DOWN THAT JURISDICTION, EVEN THOUGH WE THOUGHT
THAT THE PUBLIC INTEREST WOULD BE BETTER SERVED BY BROADENING THE
COVERAGE OF THE FAIR LABOR STANDARDS ACT. 

FN1  TO DATE THE COMMISSION HAS PRESCRIBED QUALIFICATIONS AND MAXIMUM
HOURS ONLY FOR DRIVERS.  SEE 49 CODE FED. REG., CUM. SUPP. (1944) PARTS
191, 192. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE RUTLEDGE JOIN IN THIS
DISSENT.