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April 13, 1948

ISPASS et al.

The opinion of the court was delivered by: CONGER

This is an action on remand from the Supreme Court of the United States. *fn1"

In the original trial of the suit upon an agreed statement of facts, the District Judge dismissed the complaint 'without prejudice' *fn2" after plaintiffs' refusal to seek determination by the Interstate Commerce Commission of their status under Section 13(b)(1) of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., and the Motor Carrier Act, 49 U.S.C.A. § 1 et seq., the Judge having declined to decide such question. 54 F.Supp. 565. The Circuit Court of Appeals for this Circuit affirmed the judgment of dismissal as to plaintiff Shapiro but reversed with respect to the other plaintiffs and remanded the case for entry of judgment in their favor. 152 F.2d 619. No objection was made in the Supreme Court as to the disposition of Shapiro's case, and so the following discussion does not concern him.

The plaintiffs, employees of defendant, brought suit under Section 16(b) of the Fair Labor Standards Act *fn3" to recover unpaid overtime compensation in accordance with the Act for various periods between 1938 and 1941. The defendant's answer alleged that it was an interstate common carrier of freight by motor vehicle and that the plaintiffs were employees with respect to whom the Interstate Commerce Commission had power to establish qualifications and maximum hours of service pursuant to the provision of Section 204(a) of the Motor Carrier Act *fn4" , and that, therefore, plaintiffs were excluded from coverage under the Fair Labor Standards Act by virtue of Section 13(b)(1). *fn5"

 The Supreme Court remanded the case for determination ' * * * whether the activities of the respective respondents consisted, either wholly or in substantial part, of the class of work which is defined by the Interstate Commerce Commission in Exparte No. MC-2, 28 M.C.C. 125, 133-134, as that of a 'loader,' and as affecting the safety of operation of motor vehicles in interstate or foreign commerce.' 330 U.S. 695, 706, 67 S. Ct. 954, 960, 91 L. Ed. 1184. The true nature of plaintiffs' work was not ascertainable from the description contained in the agreed statement of facts from which I quote:

 'Item 3: As to the northbound freight the loaded vehicles would come into New York in the very early morning hours to the West 11th Street Terminal where new drivers took charge of the vehicles, and what were called downtown helpers rode on the vehicles with the drivers to the 38th Street Terminal. At such terminal the doors of the trucks were opened in the mornings, both the driver and downtown helper remaining on the vehicles. As the downtown helper pushed the freight packages over the tailboards they were received by the plaintiffs, who then placed the freight packages in the sub-terminal building. Still later in the mornings the plaintiffs then delivered the packages to various consignees in the Garment Center, generally using for that purpose what are called hand-trucks or flat trucks, using their own manpower for propulsion.

 'During those same days other northbound trucks after first stopping at the West 11th Street main terminal to change a driver and receive a downtown helper, bypassed the West 38th Street sub-terminal and parked first at one place and then alongside the curbs in the Garment Center. At those places the unloading operation was performed in the same way as at the sub-terminal hereinabove described, and the plaintiffs then made the deliveries by hand or by hand trucks into the insides of the Garment Center buildings.

 'Item 4: In the late afternoons and early evenings freight originating with various consignors at various locations in the Garment Center was'picked up' for intended delivery the next morning in Philadelphia or elsewhere south of New York. As to these southbound operations the fact were these: Some of the freight packages would be picked up by the plaintiffs at the consignor's places of business in the Garment Center and hand-trucked by them to the West 38th Street sub-terminal. At that place the plaintiffs themselves did, in due course, physically load the freight packages into a waiting truck which, when loaded, took up this journey first to the West 11th Street main terminal, and then with a new driver went on to the destinations south of New York. A downtown employee other than the plaintiffs would also at the same time so load the vehicles.

 'Other trucks for southbound loadings took their stations on the public streets in the Garment Center where the plaintiffs brought the packages by hand or by hand truck. The part which the plaintiffs took in such loading consisted of the lifting of the packages on to the tailboards of the trucks, and very often when the weights or size of the packages so required they would stand inside the truck bodies and, together with the downtown employee, stack and pile the freight in the vehicle.'

 I, therefore, permitted the parties to enlarge the record by testimony of the 'loading' done by the plaintiffs in order to determine the question raised in the opinion of the Supreme Court. The defendant examined several witnesses on the point, and they all outlined the plaintiffs' general duties substantially in accordance with the stipulation of facts. However, they elaborated on the manner and extent of the plaintiffs' loading, and their testimony convinces me that the plaintiffs are not 'loaders' within the meaning of the term as set forth in Ex parte No. MC-2, supra.

 As the stipulation and the testimony indicate, the major part of the plaintiffs' time was consumed in delivering packages by hand trucks to various consignees in the Garment Center and in picking up packages from consignors for Philadelphia or other southbound delivery by their employer. It was solely in connection with these southbound deliveries that the plaintiffs expended effort in placing the packages in the truck. These operations took place either at the West 38th Street sub-terminal of the defendant or at various locations on the public streets of the Garment Center to which places the plaintiffs had brought the packages by hand trucks.

 According to the testimony these trucks, of which there were three daily, on the average, but occasionally four, were manned by a driver and one to four driver's helpers. When the southbound truck arrived at location for loading, the plaintiffs would place the packages on the tailboard of the truck. What occurred after that is the immediate issue of the case.

 It does not appear that the plaintiffs assisted, as a matter of course, in removing the packages from the tailboard and handling them inside the truck, nor does it appear that the plaintiffs, when occasion for this work arose, did any more than act under the direction of the driver or his helpers in stacking the packages in the truck. The defendant's witnesses support these conclusions.

 Defendant's witness Sklar, who was in charge of the West 38th Street sub-terminal testified:

 'Q. You spoke about a truck. What about that? What else did they have besides a hand truck? A. As I said, they would either bring it to me at the 38th Street terminal or if there was a truck nearer the pickup, they would deposit it on the truck, either throw it up on the truck if they could, or else wait until we had additional help, and they would lift it up to the tail-gate. Then they would help the driver or the man, whichever one of these helpers was on the truck, help him stack it and load it on whatever was required.

 'The Court: They would put the packages on the tail-gate and then help the driver to stow it, is that right? The Witness: Stack it. That is right. * * * '

 Defendant's witness Cohen, who was formerly in the employ of defendant, doing the same type of work as plaintiffs, testified that the ...

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