§ 782.5 Loaders.

LevinsonSpector Motor Service,Pyramid Motor Freight Corp.Ispass,WallingGordon's TransportWallingHuber & Huber Motor Express,(a) A “loader,” as defined for Motor Carrier Act jurisdiction (Ex parte Nos. MC-2 and MC-3, 28 M.C.C. 125, 133, 134, 139), is an employee of a carrier subject to section 204 of the Motor Carrier Act (other than a driver or driver's helper as defined in §§ 782.3 and 782.4) whose duties include, among other things, the proper loading of his employer's motor vehicles so that they may be safely operated on the highways of the country. A “loader” may be called by another name, such as “dockman,” “stacker,” or “helper,” and his duties will usually also include unloading and the transfer of freight between the vehicles and the warehouse, but he engages, as a “loader,” in work directly affecting “safety of operation” so long as he has responsibility when such motor vehicles are being loaded, for exercising judgment and discretion in planning and building a balanced load or in placing, distributing, or securing the pieces of freight in such a manner that the safe operation of the vehicles on the highways in interstate or foreign commerce will not be jeopardized. ( v. 300 U.S. 649; v. 330 U.S. 695; v. (W.D. Tenn.), 10 Labor Cases, par. 62,934, affirmed 162 F. (2d) 203 (C.A. 6), certiorari denied 332 U.S. 774; v. 67 F. Supp. 855; Ex parte Nos. MC-2 and MC-3, 28 M.C.C. 125, 133, 134)

LevinsonSpector Motor Service,Pyramid Motor Freight Corp.Ispass,WallingSilver Fleet Motor Express,WallingHuber & Huber Motor Express,WallingGordon's TransportsTinerellaDes Moines Transp. Co.,LevinsonSpector Motor Service,WallingGordon's TransportsWallingHuber & Huber Motor Express,WallingSilver Fleet Motor Express,CreanMoran Transporation Lines,WallingCommercial Motor FreightHoglaPorter(b) The section 13(b)(1) exemption applies, in accordance with principles previously stated (see § 782.2), to an employee whose job involves activities consisting wholly or in part of doing, or immediately directing, a class of work defined: (1) As that of a loader, and (2) as directly affecting the safety of operation of motor vehicles in interstate or foreign commerce within the meaning of the Motor Carrier Act, since such an employee is an employee with respect to whom the Secretary of Transporation has power to establish qualifications and maximum hours of service. ( v. 330 U.S. 649; v. 330 U.S. 695; v. 67 F. Supp. 846; v. 67 F. Supp. 855; v. (W.D. Tenn.); 10 Labor Cases, par. 62,934, affirmed 162 F. (2d) 203 (C.A. 6) certiorari denied 332 U.S. 774; v. 41 F. Supp. 798.) Where a checker, foreman, or other supervisor plans and immediately directs the proper loading of a motor vehicle as described above, he may come within the exemption as a partial-duty loader. ( v. 330 U.S. 649; v. (W.D. Tenn.), 10 Labor Cases, par. 62,934; affirmed 162 F. (2d) 203 (C.A. 6), certiorari denied 332 U.S. 774; v. 67 F. Supp. 885; v. 67 F. Supp. 846; v. 57 F. Supp. 212 (W.D. N.Y.). See also 9 Labor Cases, par. 62,416; v. (S.D. Ind.), 11 Labor Cases, par. 63,451; v. (E.D. Okla.), 11 Labor Cases, par. 63,389 6 W. H. Cases 608.)

Pyramid Motor Freight Corp.Ispass,LevinsonSpector Motor Service,Pyramid Motor Freight Corp.Ispass,LevinsonSpector Motor Service,PorterPoindexter,McKeownSouthern Calif. Freight Forwarders,WallingGordon's TransportsWallingHuber & Huber Motor Express,WallingSilver Fleet Motor Express,CreanMoran Transp. Lines,GibsonGlasgowKeelingHuber & Huber Motor Express,WirtzC&P Shoe Corp.BarrickSouth Chicago Coal & Dock Co.Pyramid Motor Freight Corp.Ispass,Yellow Transit Freight Lines Inc.Balven,Foremost DairiesIvey,IspassPyramid Motor Freight Corp.,MitchellMeco Steel Supply Co.,GartonSanders Transfer & Storage Co.,McKeownSouthern Calif. Freight Forwarders,WallingGordon's TransportsCreanMoran Transporation Lines,WallingGordon's Transports,LevinsonSpector Motor Service,(c) An employee is not exempt as a loader where his activities in connection with the loading of motor vehicles are confined to classes of work other than the kind of loading described above, which directly affects “safety of operation.” ( v. 330 U.S. 695; v. 330 U.S. 649) The mere handling of freight at a terminal, before or after loading, or even the placing of certain articles of freight on a motor carrier truck may form so trivial, casual, or occasional a part of an employee's activities, or his activities may relate only to such articles or to such limited handling of them, that his activities will not come within the kind of “loading” which directly affects “safety of operation.” Thus the following activities have been held to provide no basis for exemption: Unloading; placing freight in convenient places in the terminal, checking bills of lading; wheeling or calling freight being loaded or unloaded; loading vehicles for trips which will not involve transportation in interstate or foreign commerce within the meaning of the Motor Carrier Act; and activities relating to the preservation of the freight as distinguished from the safety of operation of the motor vehicles carrying such freight on the highways. ( v. 330 U.S. 695; v. 330 U.S. 649; v. 158 F. (2d) 759 (C.A. 10); v. 49 F. Supp. 543; v. (W.D. Tenn.), 10 Labor Cases, par. 62,934, affirmed 162 F. (2d) 203 (C.A. 6), certiorari denied 332 U.S. 774; v. 67 F. Supp. 855; v. 67 F. Supp. 846; v. 50 F. Supp. 107, 54 F. Supp. 765 (cf. 57 F. Supp. 212); v. (Tenn. Sup. Ct.) 157 S.W. (2d) 814. See also v. 57 F. Supp. 617.) As is apparent from opinion in Ex parte Nos. MC-2 and MC-3, 28 M.C.C. 125, red caps of bus companies engaged in loading baggage on buses are not loaders engaged in work directly affecting safety of operation of the vehicles. In the same opinion, it is expressly recognized that there is a class of freight which, because it is light in weight, probably could not be loaded in a manner which would adversely affect “safety of operations.” Support for this conclusion is found in v. 335 F. (2d) 21 (C.A. 5), wherein the court held the loading of boxes of shoes, patterned on the last in, first out principle clearly was not of a safety affecting character “in view of the light weight of the cargo involved.” In the case of coal trucks which are loaded from stockpiles by the use of an electric bridge crane and a mechanical conveyor, it has been held that employees operating such a crane or conveyor in the loading process are not exempt as “loaders” under section 13(b)(1). ( v. (N.D. Ill.), 8 Labor Cases, par. 62,242, affirmed 149 F. (2d) 960 (C.A. 7).) It seems apparent from the foregoing discussion that an employee who has no responsibility for the proper loading of a motor vehicle is not within the exemption as a “loader” merely because he furnishes physical assistance when necessary in loading heavy pieces of freight, or because he deposits pieces of freight in the vehicle for someone else to distribute and secure inplace, or even because he does the physical work of arranging pieces of freight in the vehicle where another employee tells him exactly what to do in each instance and he is given no share in the exercise of discretion as to the manner in which the loading is done. (See v. 330 U.S. 695; v. 320 F. (2d) 495 (C.A. 8); v. 204 F. (2d) 186 (C.A. 5); v. 78 F. Supp. 475 (S.D. N.Y.); v. 183 F. Supp. 779 (S.D. Tex.); v. 124 F. Supp. 84 (M.D. Tenn.); v. 49 F. Supp. 543; v. (W.D. Tenn.) 10 Labor Cases, par. 62,934, affirmed 162 F. (2d) 203 (C.A. 6), certiorari denied 332 U.S. 774; v. 50 F. Supp. 107 (see also further opinion in 54 F. Supp. 765, and cf. the court's holding in 57 F. Supp. 212 with v. cited above). See also v. 330 U.S. 649.) Such activities would not seem to constitute the kind of “loading” which directly affects the safety of operation of the loaded vehicle on the public highways, under the official definitions. (See Ex parte Nos. MC-2 and MC-3, 28 M.C.C. 125, 133, 134).