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August 15, 1944

CREAN et al.
M. MORAN TRANSP. LINES, Inc., et al.

The opinion of the court was delivered by: KNIGHT

KNIGHT, District Judge.

This action is brought by certain employees of the defendants who seek to recover compensation under Section 16(b) of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 216(b), popularly known as the Wage and Hour Law. Associated Transport, Inc., acquired M. Moran Transportation Lines, Inc., in or about December, 1942.

Section 7(a) (3) of the Fair Labor Standards Act, 29 U.S.C.A. § 207(a) (3), provides:

 "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" for a work week longer than certain designated hours, "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."

 This Court is now to determine whether or not plaintiffs' employment comes within the exceptions of Section 13(a) (1, 2), (b) (1, 2) of the Act, 29 U.S.C.A. § 213(a) (1, 2), (b) (1, 2). Section 13(b) (1) provides:

 "The provisions of section 7 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 204 of the Motor Carrier Act, 1935."

 Upon previous motions in this case I have decided that the burden of proof is on the defendant employer to establish whether or not the plaintiffs come within the exception to the Act.

 Whether these employees are exempted from the Wage and Hour Law's provisions depends upon the nature of their work or employment. When that is determined, then the question of the applicable statute is determined.

 In United States v. American Trucking Associations Inc., 310 U.S. 534, 60 S. Ct. 1059, 84 L. Ed. 1345, the word "employees" within section 204(a) (1, 2) of the Motor Carrier Act, 49 U.S.C.A. § 304 (a) (1, 2), was limited to mean those employees whose activities affect safety of operation. However, a substantial part of the employee's time must be devoted to the exercise of the duties and activities which affect the safety of operation of the employer's motor trucks in interstate commerce. "By substantial is not meant a majority of the time." Ex parte No. MC-2, 28 M.C.C. 125; Kosofsky v. Champion Trucking Co., Inc., 81 Misc. 470, 43 N.Y.S.2d 5.

 Plaintiffs were employed at defendant's Buffalo Trucking Terminal as "callers," "wheelers" and "checkers" during the period from October 24, 1938, to December 15, 1942. The men are in fact dock men at defendant's terminal in Buffalo. In brief the work of each is that the "callers" unload incoming semi-trailers and truck bodies of their freight, while the "wheelers" load the outgoing semi-trailers and bodies. The "checkers" work with the way bills or bills of lading and their function was to check the shipments for breakage, correctness in the number of packages or cartons in each individual shipment, direct the movement of freight on the loading dock for further shipment or local delivery as the case might be. They were also charged with noting the condition of the bodies as regards their condition and whether repairs were needed, and to the responsibility of seeing that so-called dangerous shipments (termed dangerous by the I.C.C.) bore the proper label.

 "Callers" and "wheelers" are within the exception to the Act and cannot recover. In Ex parte No. MC-2, supra, findings of fact and conclusions of law were made respecting various types of trucking company employees by the Interstate Commerce Commission. Amongst those considered were "loaders", and the term as used therein was defined as "loaders, dockmen, or helpers * * * whose sole duties are to load and unload motor vehicles and transfer freight between motor vehicles and between the vehicles and the warehouse." The Commission concluded with a finding of fact (finding number 2) that loaders," "devote a large part of their time to activities which directly affect the safety of operation of motor vehicles in interstate or foreign commerce." The interpretations of the Interstate Commerce Commission are entitled to great weight, United States v. American Trucking Associations, supra, and we shall follow them here. Employees who load and unload trucks engaged in interstate commerce are not covered by the Fair Labor Standards Act so far as hours of labor are concerned. Tinerella v. Des Moines Transportation Co., D.C., 41 F.Supp. 798.

 The testimony introduced at the trial is the best indication as to the true duties of these men.

 Pages 195, 196:

 "Q. But there are frequent occasions on which the ships (articles is shipment) are of such a size it takes the whole gang? A. Well, yes."

 "Q. And the whole gang includes you, (the checker) the so-called caller and the wheelers? A. Yes, sir."

 Nor can there be any doubt but what the checker himself is instrumental in the loading of these truck-trailers. Again we turn to the testimony of the case:

 "Q. (Pg. 277) * * * He (checker) has the right to do anything he pleases, he runs the gang? A. Yes, sir."

 "Q. (Pg. 617) * * * Who does control the loading with respect to weights of those trucks when they are being loaded? A. The checker."

 "Q. (Pg. 631) Who is in charge, direct charge, immediate charge of the loading of the equipment at the Moran Terminal in Buffalo? A. The checkers are."

 "Q. (Pgs. 640, 641) When the manager was reprimanded (when poorly loaded) what was he supposed to do?

 "Q (By the Court) What instructions were given with regard to the reprimand? A. Of course, the first thing would be to investigate who loaded the unit. That could be done either by checking the bills, because the checker's name would be on there, or by checking the checker's tonnage report, and when they developed who it was, he reprimanded the checker and explained to him the circumstances or the condition that it was loaded in and where it was improper, and to use corrective measures in the future. If by any chance he (checker) blamed it on a two-wheeler * * *"

 "Q. (By the Court) You mean if the checker blamed the two-wheeler? A. It was never taken as any alibi for the checker was the boss and it was his responsibility to see the two-wheeler was properly instructed and ...

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