Morris v. McComb/Dissent Murphy
Mr. Justice MURPHY, with whom Mr. Justice BLACK and Mr. Justice DOUGLAS concur, dissenting.

Apart from § 13(b)(1), it is clear that petitioner's truck drivers and mechanics are subject to the wage and hour provisions of the Fair Labor Standards Act. They spend virtually all of their time in transportation activities which are an integral part of the production of goods for interstate commerce. Walling v. Comet Carriers, 2 Cir., 151 F.2d 107. The issue thus becomes one of determining whether these employees are plainly and unmistakably within the terms and spirit of the § 13(b)(1) exemption, giving due regard to the rule that exemptions from the operation of humanitarian legislation are to be narrowly construed. Phillips Co. v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 808, 89 L.Ed. 1095, 157 A.L.R. 876.

By a pedantically literal reading of § 13(b)(1), it is possible to say that these employees are among those as to whom the Interstate Commerce Commission has 'power' to establish qualifications and maximum hours of service. A sporadic and minute portion of their activities, approximating 3% to 4% of the total, affects the safety of operation of trucks in interstate commerce. The Commission's power under § 204(a) of the Motor Carrier Act is confined to regulation of transportation in interstate and foreign commerce; and its jurisdiction over employees' activities is limited to those which affect the safety of operation of motor vehicles engaged in such transportation. United States v. American Trucking Ass'ns, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345. Hence the potential scope of the Commission's 'power' over petitioner's employees is extremely narrow. Approximately 97% of their activities are beyond the jurisdiction of the Commission. Yet it is by the slender thread of this 'power' that they fall within § 13(b)(1) and hence are deprived of the benefits of the Fair Labor Standards Act.

Due respect for the legislative purpose militates against such a result. We are dealing here with a statute that is dedicated to the proposition that laboring men are to be treated as something more than chattels. And their statutory rights are not to be discarded by adherence to formalistic dogmas of interpretation. Section 13(b)(1) is not just an exercise in grammar. It is part of the living fiber embodying the rights of those who labor for others.  t must be read and interpreted in the light of reason and in the light of the aims which Congress sought to achieve.

When that is done, it becomes clear that when § 13(b)(1) speaks of those over whom the Interstate Commerce Commission has 'power' it means those who perform at least a substantial amount of activities within the Commission's jurisdiction. Congress was not concerned with insignificant conflicts between Fair Labor Standards Act regulations and Interstate Commerce Commission regulations. Nor was it desirous of leaving unregulated nearly all of the working time of those who are engaged in the production of goods for commerce but who spend infinitesimal amounts of time directly in interstate transportation. In other words, engaging in an occasional and microscopic amount of activities affecting safety of operation should no more exclude employees from the Act than sporadically shipping insubstantial amounts of goods in interstate commerce should bring those engaged in such shipments within the purview of the Act. See Mabee v. White Plains Pub. Co., 327 U.S. 178, 181, 66 S.Ct. 511, 512, 90 L.Ed. 607. That was implicitly recognized by the Court in Pyramid Motor Corp. v. Ispass, 330 U.S. 695, 708, 67 S.Ct. 954, 960, and I had not supposed until now that that case or Levinson v. Spector Motor Co., 330 U.S. 649, 67 S.Ct. 931, justified any other result.

Interpreting § 13(b)(1) in disregard of reality only acts as an open invitation to evade the Act and to destroy the statutory rights of those trucking concern employees who now perform no activities which affect the safety of operations. All that the employer need do to withdraw the benefits of the Act from these employees is to send them occasionally to a terminal to pick up or deliver a piece of interstate freight. They then fall into the 'power' of the Interstate Commerce Commission and automatically lose their rights under the Fair Labor Standards Act. I accordingly dissent.

Mr. Justice RUTLEDGE, dissenting.

But for this Court's decisions in the Levinson and Ispass cases, my views in this case would be in substantial accord with those expressed by Mr. Justice MURPHY. See Levinson v. Spector Motor Service, 330 U.S. 649, dissenting opinion at 685, 67 S.Ct. 931, 949; Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695, 67 S.Ct. 954. I thought the decisions in those cases foreshadowed the extreme result here, which goes so far as to exclude from the Fair Labor Standards Act's protection at least two employees who made no trips in what petitioner regards as the interstate phase of his business. While on the other hand one driver made 97 such trips, there were others who made only very occasional ones.

Although I regarded the Levinson and Ispass decisions as foreshadowing and perhaps concluding any situation where the employee's work would substantially affect safety in interstate operations, and thus as going to the extent of exempting from Fair Labor Standards Act coverage any employee whose work substantially affects such safety, I did not understand that all employees driving for a company engaged principally in intrastate commerce but doing a very small amount of interstate commerce would be lumped together, for purposes of the exclusion, on the basis of the proportionate amounts of work done by the company in those phases of its business. That I think is the effect of the present decision. To that extent, I also think the ruling constitutes an extension of the exemption beyond that sustained in the Levinson and Ispass cases.

On the basis of the decision last term in United States v. Yellow Cab Company, 332 U.S. 218, 67 S.Ct. 1560, I also have difficulty with the view that any of the carrier's services here were rendered in interstate commerce. That decision held that the transportation in Chicago of passengers and their luggage from their homes, offices, hotels, etc. to railroad stations for the purpose of boarding trains on interstate journeys, and conversely the like use of taxicabs in the reverse direction after leaving trains on arrival in Chicago following such journeys, were 'too unrelated to interstate commerce to constitute a part thereof within the meaning of the Sherman Act (15 U.S.C.A. §§ 1-7, 15 note).' 332 U.S. at page 230, 67 S.Ct. 1567. While I was not in agreement with the Yellow Cab decision, the same ruling, if applied to the facts here, would make the so-called 'interstate commerce,' i.e., the transportation of freight from petitioner's customers' places of business to shipping terminals, intrastate rather than interstate commerce. 

I am unable to agree with the Court's opinion. 

Notes