Reply Brief — Lodi Truck Service, Inc. v. Division of Labor Standards Enforcement

Supreme

| FILED |

k |

No. 85-2112 J SEP 15 1986

SOSEPITF-SPANIOL, JR,

CLERK

In the Supreme Court

OF THE

United States

OcTOBER TERM, 1985

Lopi TRUCK SERVICE, INC..

Appellant,

VS.

Division oF LABOR STANDARDS ENFORCEMENT,

DEPARTMENT OF INDUSTRIAL RELATIONS,

STATE OF CALIFORNIA,

Appellee.

On Appeal from the Superior Court of the State of California,

County of San Joaquin, Appellate Department

REPLY IN OPPOSITION TO MOTIONS

TO DISMISS OR AFFIRM

DANIEL W. BAKER

HANDLER, BAKER, GREENE &

TAYLOR

333 Market St., Suite 2277

San Francisco, California 94105

(415) 495-5020

Attorney for

Lodi Truck Service, Inc.

BOWME OF GAN FRANCISCO WC. - 190 NINTH ST, + S.F..CA 94103 + (415) 864-2300

TABLE OF CONTENTS

Intent of Congress to grant exclusive jurisdiction to a single

federal agency over hours of service of interstate motor

OT Be I sins cea ko ks ceannensadecces

The clear intent of Congress was to enact a regulatory

scheme that completely occupied the field and displaced

states’ power over safety of operation employees of inter-

Pe ee a 8 6 6 cbs ace kasd cee ce be ceeensann

Cases cited by appellee are not directly related or applicable

to the issue herein

S28 24 #-6-6.4-82:46.2 6.6) 0 @ 8 6.4.8: 2 08 8.26 OS O88 8

Conclusion

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a

|

ii

TABLE OF AUTHORITIES CITED

Cases

Arkansas Elec. Coop. v. Ark. Public Ser. Comm'n, 46]

UB. 373 (1998) «osx cascctecge tees

Bethlehem Co. v. State Board, 330 U.S. 767 (1946) ....

Castle v. Hayes Freight Lines, Inc., 348 U.S. 61, 75 S.Ct.

tO) rrr ry ee eke

Central Delivery Service v. Burch (D.C. Md) 355 F. Supp.

954, affirmed, 486 F.2d 1399 (1973) ................

Chicago & North Western Transp. v. Kalo Brick & Tile

Co., 490 U.S. 333, 101 SA. 1136 (IGRI)... occ ness

City of Burbank v. Lockheed Air Terminal, 411 U.S. 628,

33 BAX, 1956 C1079) «a ccs ccccsacaeaen uae

District of Columbia v. Schwerman Trucking Co. (D.C.

Cie. 1974) S27 AMS G06 |. «6 6:ccs0 cueauneeseeeess

Dove v. Coupe (D.C. Cir.) 759 F.2d 167 (1985) .......

H.P. Welch Co. v. New Hampshire, 306 U.S. 79, 59 S.Ct.

O58 (TDD). «2 vice cc dsnesecennunaeaneeeeeee

Huron Cement Co. v. Detroit, 362 U.S. 440 (1960) .....

Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116

CURED ence saccectncdcseenune ase aek eee

Levinson v. Spector Motor Service, 330 U.S. 649, 67 S.Ct.

OS) (IDET) ua cc wnciaecsscaueeee ae eeaeeeeeeene

Mitcheli v. H.B. Zachry, 362 U.S. 310, 80 S.Ct. 739

(| PEP PPPererrrr rer rer on ee

Morris v. McComb, 332 U.S. 422, 68 S.Ct. 125 (1948)

Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 47

BAM. 2B? CHRD oo cs sxsadakdgususee

Ray v. Atlantic Richfield, 435 U.S. 151 (1978).........

Schecter v. United States, 295 U.S. 495, 55 S.Ct. 837

CODES). onc naan suncdnceeseeauuaee

Service Transfer Co. v. Virginia, 359 U.S. 171 (1959) ...

Page

iil

TABLE OF AUTHORITIES CITED

CASES

Page

Southland Gasoline Co. v. Bayley, 319 U.S. 44, 63 S.Ct.

a CERT BI OES ee ee a EM 6,7,8

United States v. American Trucking Association, 310 U.S.

Oe ee 2, 3, 6, 8

United States v. ATA, 310 U.S. 534, 84 L.Ed. 1345, 60

SSS ae ar ee ee 8

United States v. Darby, 312 U.S. 100, 61 S.Ct. 451 (1940) 3,4

Weaver v. Pittsburgh S.S. Co., 153 F.2d 597 (1946) .... 6

Williams v. W.M.A. Transit Company (D.C. Cir. 1972),

EE 8

Statutes

Civil Aeronautics Act of 1938 (52 Stat. 1007) ......... 5

District of Columbia Minimum Wage Act............. 9

Fair Labor Standards Act (FLSA) .................. passim

Hours of Service Act (34 Stat. 1415) (1907 railroad

EEE ee 2

ge 4,7

Judicial Reorganization Act (84 Stat. 473; DC Code 1973

Cah abcd kd awk Gx 42 © 8

Motor Carrier Act of 1935 (49 Stat. 543) (MCA)...... 2

Seamen’s Act (38 Stat. 1164, 1169, 1170-1184) ........ 2

Title 49, Code of Federal Regulations, section 350-399 .. 7

29 US.C.::

RT ee 2, 3, 5, 6, 9

IE ES a ea 6

ele SS ) re 4,3

ee so ins doa (AKG eke aed vv aoe is 6

49 US.C::

a CN a Sa are me 9

a: ieee en ee

iV

TABLE OF AUTHORITIES CITED

Other Authorities

Page

to ee Ps err ere rer rrr ere 3

79 Cong. Rec. 5651, 5652, 12204-12206, 12209, 12225

1. ae rye erry ror Tee errr rrr re 4

79 Come Rec. S652, 12205, 12725 (1955) ... 0.2025. 4

FOR TI. TTS ERD OTD baci secede cccen incense 5

Roberts, The Court and the Constitution, 56, 58 (1951) 4

i Aaah ORO Sea ashe ha ha ks 5

No. 85-2112

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1985

Lop! TRUCK SERVICE, INC.,

Appellant,

VS.

DivViSION OF LABOR STANDARDS ENFORCEMENT,

DEPARTMENT OF INDUSTRIAL RELATIONS,

STATE OF CALIFORNIA,

Appellee.

On Appeal from the Superior Court of the State of California,

County of San Joaquin, Appellate Department

REPLY IN OPPOSITION TO MOTIONS

TO DISMISS OR AFFIRM

Appellant, Lodi Truck Service, Inc., pursuant to Rule 16 of the

Rules of the Supreme Court of the United States hereby replies

to appellee’s motions to dismiss or affirm the decision of the

California Superior Court.

INTENT OF CONGRESS TO GRANT EXCLUSIVE JURIS-

DICTION TO A SINGLE FEDERAL AGENCY OVER

HOURS OF SERVICE OF INTERSTATE MOTOR CAR-

RIER SAFETY EMPLOYEES

Appellee in both motions to dismiss or affirm’ offers the

argument that Congress has not evidenced a manifest intent to

preempt the field, i.e. grant to the United States Department of

Transportation (“D.O.T.”) exclusive jurisdiction over the work

hours of safety of operations employees of interstate motor

carriers regulated by the Interstate Commerce Commission

(“I.C.C.”). The motions contain no discussion of the pertinent or

governing statutes, the Interstate Commerce Act and the Fair

Labor Standards Act (“FLSA”), or the intent of Congress and

the language by which the federal legislature expressed its wishes,

policy and purpose of the legislation. The reason for this omission

is apparent—the legislative intent and history is manifestly con-

trary to the position of the appellee. Absence of challenges by the

respective states or local governments to the federal agency’s

exclusive powers over the hours of these employees over the past

50 years should make the current assumption over such hours by

a State very suspect. The Motor Carrier Act of 1935 (“MCA”),

pursuant to which the I.C.C. was granted jurisdiction over the

hours of service of safety of operation employees of interstate

motor carriers and the FLSA enacted in 1938, which affirmed

Congress’ intent to grant to the I.C.C., and now the D.O.T.

exclusive jurisdiction over these hours, have remained substan-

tially unchanged since they became law. Legislative histories of

these acts reflect a clear and manifest Congressional intent that

other federal, state, municipal and other local governmental

agencies shall not have concurrent control with the D.O.T. over

the service hours of these employees.

' Motions to dismiss or affirm were filed on behalf of the Division of

Labor Standards Enforcement, the Department of Industrial Relations,

the State of California, by the Attorney General of the State of

California and by the Department of Labor Standards enforcement.

2

In a directly related and leading case, the United States

Supreme Court was required to determine the intent of Congress

with respect to the relationship of the power of the 1.C.C. over the

hours of service of safety of operation employees of interstate

motor carriers and the exception or preclusion of control of the

same hours by other governmental agencies. In United States v.

Amercian Trucking Association, 310 U.S. 534, 60 S.Ct. 1059

(1940), it was declared that the function of the court in interpret-

ing statutes is to “construe the language so as to give effect to the

intent of Congress.” “There is, of course,” it stated, “no more

persuasive evidence of the purpose of the statute than the words

by which the legislature undertook to give expression to its

wishes. ... When that plain meaning has led to absurd or futile

results, however, this court has looked beyond the words to the

purpose of the Act. Frequently, however, even when the plain

meaning did not produce absurd results but merely an unreasona-

ble one ‘plainly at variance with the policy of the legislation as a

whole’, this court has followed that purpose rather than the literal

words. ... Emphasis should be laid, too, upon the necessity for

appraisal of the purposes as a whole of Congress in analyzing the

meaning of clauses or sections of general acts.” The Supreme

Court further stated that the general practice or policy of Con-

gress has been consistent in legislating for qualifications and hours

of transportation employees and referred to the statutes enacted

pursuant to this policy: “The Hours of Service Act proposes

restrictions on the hours of labor of employees ‘actually engaged

in or connected with the movement of any train.’ The Seamen’s

Act limits employee regulations under it to members of ships’

crews. The Civil Aeronautics Authority has authority over the

hours of service of employees ‘in the interest of safety’”’. (Id. at

1063, 1064)

The 1907 railroad employees’ Hours of Service Act (34 Stat.

1415), the Seamen’s Act (38 Stat. 1164, 1169, 1170-1184),

enacted in 1915, the Civil Aeronautics Act of 1938 (52 Stat.

1007), and the Motor Carrier Act of 1935 (49 Stat. 543) are

pieces of the general scheme cf Congress to permit only individ-

ua! federal agencies to establish the limits of the hours of work for

these transportation employees. The federal legislature, in recog-

nition of this long established policy, included Subsections

13(b)(1)(2)(3) and (6) (29 U.S.C. 213(b) (1) (2) (3) and (6) )

3

in the FLSA to assure protection for the exclusivity of these

powers granted to the agencies. The appellee, however, argues

that the exclusive power was not the intent of Congress in

enacting these laws and that no restraint or inhibition is placed

upon the state’s power to control the work hours of such transpor-

tation workers. The effect of this position, if sustained, would be

for any federal, state, municipal, or other government or their

agencies to assume joint or concurrent control over the hours of

these employees except; however, the U.S. Department of Labor,

which is precluded from doing so by virtue of Subsection

13(b)(1)(2)(3) and (6) of the FLSA. Appellee’s argument is

manifestly without merit and would produce an absurd result. The

absurdity of this interpretation is made readily apparent by the

fact that if appellee’s motion is granted, there will be literally

hundreds and perhaps thousands of governments and their agen-

cies in the 50 states that will be vested with the power to regulate

the hours of the safety employees of interstate motor carriers.

When the Motor Carrier Act was passed in 1935, 40 states had

regulatory measures relating to the hours of service of motor

carrier employees. United States v. American Trucking Associa-

tion, 60 S.Ct. at 1065. With this knowledge, Congress wisely

reserved the power to establish hours for the safety employees of

interstate motor carriers in the single governmental agency and

avoided what would otherwise be a chaotic and unreasonable

situation.

The two statutes, MCA and FLSA, are unquestionably among

the most pervasive and comprehensive regulatory schemes ever

enacted by the federal legislature. United States v. Darby, 312

U.S. 100, 61 S.Ct. 451 (1940); Kirschbaum v. Walling, 316 U.S.

517, 62 S.Ct. 1116 (1942); Castle v. Hayes Freight Lines, Inc.,

348 U.S. 61, 75 S.Ct. 191 (1954); Mitchell v. H.B. Zachry, 362

US. 310, 80 S.Ct. 739 (1960); Chicago & North Western Transp.

v Kalo Brick & Tile Co., 450 U.S. 333, 101 S.Ct. 1124 (1981).

Both laws have long expository histories as Congress had before it

annually between 1926 and 1935 legislation to regulate interstate

motor carriers and the multiple attempts that were made to

establish federal wage and hour laws graphically reveal the intent

and purpose of the FLSA. 79 Cong.Rec. 5650, 12204; Schecter v.

United States, 295 U.S. 495, 55 S.Ct. 837 (1935).

4

When considering Senate Bil! 1629, enacted as the Motor

Carrier Act of 1935, there were long debates in both the House

and Senate concerning granting control to the I.C.C. over the

qualifications and maximum hours of service of motor carrier

employees. 79 Cong.Rec. 5651, 5652, 12204-12206, 12209,

12225, (1935). It was suggested to the committees of both houses

to write maximum or specific hours for the motor carrier safety

employees which was rejected in favor of granting the 1.C.C.

discretionary authority with flexibility to “take into consideration

all peculiarities and emergencies that exist in the motor carrier

industry.” 79 Cong.Rec. 5652, 12205, 12225 (1935). The appel-

lee, however, seeks to impose maximum or specific work hour

limitations for these employees directly contrary to the wishes and

decision of Congress. Senator Wheeler, sponsor of Senate Bill

1629, stated concerning the proposal to limit the work hours “We

left it as the Commission suggested, giving them power to make

the investigation and, if and when they found it necessary, to put

into effect such rules and regulations as they might deem neces-

sary.” 79 Cong.Rec. 5652 (1935).

Section 204(a)(1) of the Interstate Commerce Act (49

U.S.C. § 304(a)(1)) enacted in 1935 declared it to be the duty of

the Commission to regulate interstate motor carriers and to

establish reasonable requirements with respect to “qualifications

and maximum hours of service of employees and safety of

operation and equipment”. Through enactment of the D.O.T. Act

and recodification, the D.O.T. is now authorized to prescribe:

“(1) Qualifications and maximum hours of service of employees

of, and safety of operation and equipment of, a motor carrier.” (29

U.S.C. § 3102(b))

In 1938, the FLSA became law through which Congress

adopted a comprehensive scheme for regulating the wages and

hours of all employees that were directly or indirectly involved in

interstate commerce. The effect of this legislation was to preempt

all state and local governmental controls over wages and hours of

all employees with limited exceptions. Justice Owen Roberts, in

discussing the effects of the landmark case, United States v.

Darby, 312 U.S. 100, 61 S.Ct. 451 (1940), which upheld the

constitutionality of the FLSA, stated:

“Of course, the effect of sustaining the Act was to place the

whole matter of wages and hours of persons employed

5

throughout the United States, with slight exceptions, under a

single federal regulatory scheme and in this way, completely

to supersede state exercise of the power in this field.”

Roberts, the Court and the Constitution, 56, 58 (1951)

In Mitchell v. H.B. Zachry Co., 362 U.S. 310, 320, 80 S.Ct.

739, 745 (1960) Mr. Justice Frankfurter stated that the [FLSA]

has “displaced state regulation throughout the fartherest reaches

of the channels of interstate commerce”. The extent of this reach

was demonstrated in an early and leading case involving the scope

of the law, Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116

(1942), in which the court concluded that maintenance, operat-

ing and janitorial employees of a six-story loft building, whose

tenants manufactured ladies’ garments that were shipped in

interstate commerce, were covered by the FLSA.

During the FLSA Congressional debates, there were many

members of both the Senate and House that strongly urged that

the wage and hour problem be met through a method of state

control implemented and aided by the federal government. How-

ever, this was rejected by Congress, thereby preempting the

jurisdiction of states over this subject matter. 81 Cong.Rec. 2445-

2448, 2720-2725 (1937). Appellee seeks to change this decision

of Congress.

In drafting the FLSA legislation, significant consideration was

given to adopting a policy that would be consistent with other

regulatory laws. Senator Black, chairman of the committee re-

sponsible for drafting Senate Bill 2475, repeatedly stated that the

Committee believed that “it would certainly be unwise to have

hours of service regulated by two governmental agencies.” 81

Cong.Rec. 7875 (1937) Pursuant to this consistent Congressional

policy, amendments were proposed and adopted specifically ex-

empting motor carrier, railroad, maritime, and aviation employees

from Section 207 (overtime hours) of the FLSA. (29 U.S.C.

213(b)(1)(2)(3)(6)) It is to be noted that Section 13(b)(1)

(29 U.S.C. 213(b)(1)) of the FLSA exempts any safety of

operation employee with respect to whom the Secretary of Trans-

portation has the “power” to establish qualifications and maxi-

mum hours of service. It does not and Congress purposely did not

intend that this authority read, as urged by the appellee, with

“respect to whom the Secretary of Transportation has established

maximum hours of service.”

6

In United States v. American Trucking Association, supra, the

United States Supreme Court considered the relationship of the

Section 18 (29 U.S.C. 218) “savings” clause of the FLSA and

the Section 13(b)(1) exemption of the work hours of motor

carrier employees. Section 18(a), in part, states:

“(a) No provision of this chapter or of any order thereunder

shall excuse noncompliance with any Federal or State law or |

municipal ordinance establishing a minimum wage higher

than the minimum wage established under this chapter or a |

maximum workweek lower than the maximum workweek |

established under this chapter... ."" (Emphasis added)

It is evident that the language of this provision of the FLSA '

allows federal, state and local governments and agencies to

regulate hours of work which they would otherwise be preempted

from doing. However, this permissive authority only applies to

employees whose hours or work weeks are established by the

FLSA, not those excepted therefrom. Maximum work weeks are

not established for motor carrier safety employees under the

FLSA. The language adopted by Congress in Section 18(a)

manifestly precludes any second governmental agency from as-

suming jurisdiction over the hours of such employees. See also

Southland Gasoline Co. v. Bayley, 319 U.S. 44, 48, 49, 63 S.Ct.

917 (1943), Weaver v. Pittsburgh S.S. Co., 153 F.2d 597, 599

(1946). In determining the intent of Congress with respect to the

relationship between Section 18(a) and Subsection 13(b)(1) of

the FLSA (29 U.S.C. 18(a), 13(b)(1)), the United States

Supreme Court in United States v. American Trucking Associa-

tion, supra, 60 S.Ct. at 1062, stated:

“Section 7 of this Act (FLSA) limits the workweek at the

norma! rate of pay of all employees subject to its terms and

Section 18 makes the maximum hours of the Fair Labor

Standards Act subject to further reduction by applicable

federal or state law or municipal ordinances. There were

certain employees excepted, however, from these regulations

by Section 13(b). It reads as follows:

‘Sec. 13 [213]. ***(b) The provisions of section 7 [207]

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 pur-

————

7

suant to the provisions of Section 204 [304 of Title 49] of

the Motor Carrier Act, 1935,***. * (Emphasis Added)

Appellee argues that Congress intended to permit an overlap-

ping of the enforcement of maximum hours of service for safety

purposes and, at the same time, require compliance with in-

creased rates of pay for work performed in excess of those hours.

However, the United States Supreme Court held that: “Such

overlapping, however, has not been authorized by Congress and it

remains for us to give full effect to the safety program to which

Congress has attached primary importance, even to the corre-

sponding exclusion by Congress of certain employees from ihe

benefits of the compulsory overtime pay provisions of the Fair

Labor Standards Act.” Levinson v. Spector Motor Service, 330

U.S. 649, 67 S.Ct. 931 (1947).

THE CLEAR INTENT OF CONGRESS WAS TO ENACT A

REGULATORY SCHEME THAT COMPLETELY OCCU-

PIED THE FIELD AND DISPLACED STATES’ POWER

OVER SAFETY OF OPERATION EMPLOYEES OF IN-

TERSTATE MOTOR CARRIERS

Appellee argues that Congress granted authority to the I.C.C.

and now D.O.T. to regulate hours of service of all safety of

operation employees of interstate motor carriers but as that

agency has not exercised the authority with respect to mechanics,

the state may fill that vacuum, assume such jurisdiction and fix

maximum hours for these workers. Under Code of Federal

Regulations, Title 49, Section 350-399, the D.O.T. has promul-

gated comprehensive Federal Motor Carrier Safety Regulations

which include qualifications, operating procedures and hours of

service of drivers, duties and responsibilities of mechanics, and

rules for loading and protection of cargoes while in transit.

Congress expressly gave the Commission “power to make the

investigation and, if and when they found it necessary, to put into

effect such rules and regulations as they might deem necessary.”

79 Cong.Rec. 5652 (1935) The posture assumed by appellee is

that anything not regulated is fair game for control by the state.

The exclusive power of the I.C.C., even though unexercised,

over the qualifications and hours of these employees was reaf-

firmed by Congress by the enactment of the FLSA as described

above. In Southland Gasoline v. Bagley, 319 U.S. 44, 63 S.Ct.

8

917 (1943), the United States Supreme Court referring to United

States v. ATA, 310 U.S. 534, 84 L.Ed. 1345, 1350, 60 S.Ct. 1039,

rejected the argument that the I.C.C. did not have the “power to”

regulate the hours of the safety employees and concluded that it

was unnecessary for the Commission to make a finding of a need

for maximum hours for the power to exist.

The court has declared that the power, not the actual exercise

of that power, is determinative of the existence of such an

exception. Levinson v. Spector Motor Service, supra, Morris v.

McComb, 332 U.S. 422, 68 S.Ct. 125 (1948), City of Burbank v.

Lockheed Air Terminal, 411 U.S. 628, 93 S.Ct. 1954 (1973),

Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 47 S.Ct. 207

(1926).

Appellee, in both motions, relies almost totally upon the

decision of this court in H.P. Welch Co. v. New Hampshire, 306

U.S. 79, 59 S.Ct. 438 (1939), to support its argument that the

State may assume jurisdiction over the work hours of appellant’s

mechanics absent such regulation by the federal agency. That

proceeding did not involve overtime compensation and the subject

violation preceded the enactment of the FLSA on June 25, 1938

which exempted the work hours of safety of operation employees

from the control of any federal, state or municipal governmental

agency other than the I.C.C. as discussed above. United States v.

American Trucking Association, supra.

CASES CITED BY APPELLEE ARE NOT DIRECTLY RE-

LATED OR APPLICABLE TO THE ISSUE HEREIN

The motion to dismiss or affirm filed by counsel for the

appellee, Division of Labor Standards, attempts to assign signifi-

cant consideration and pertinence to two District of Columbia

cases, Williams v. W.M.A. Transit Company (D.C. Cir. 1972)

472 F.2d 1258, and District of Columbia v. Schwerman Trucking

Co. (D.C. Cir. 1974) 327 Atl.2d 818. Neither the case law nor

the legislative history supports this position. Because of the

Judicial Reorganization Act (84 Stat. 473; D.C. Code 1973

Section 11-102), the Schwerman court declared that it had final

authority to interpret a District of Columbia enactment” and that

“the opinion (of the Williams court) does not constitute control-

ling precedent for this court,” The opinion of the Schwerman

court includes a comprehensive review of the history of the

9

District of Columb’a Minimum Wage Act enacted in 1966 and

amendments to the Act passed in 1970 and 1972 and its relation-

ship to Section 204 of the MCA (49 U.S.C. 304) and Section

13(b) (1) of the FLSA (29 U.S.C. 213(b)(1)) to determine the

intent of Congress relative to overtime coverage of safety employ-

ees of motor carriers employed in the District. The court con-

cluded that Congress deliberately failed to exclude motor carrier

personnel from overtime coverage of the D.C. Act. Id at 822. This

conclusion was based upon Congress’ “bodily lifting” the D.C.

Act from numerous provisions of the FLSA and excepting there-

from railroad, seamen and various categories of employees in-

cluded in Section 13 of the Federal Act but not excepting motor

carrier personnel. Amendments to the D.C. Act in 1970 again

exempted such motor carrier employees but the exemption was

once again eliminated by Congress in 1973. This history described

in Schwerman decision clearly shows that Congress was only

considering and enacting legislation pertinent to the District of

Columbia and was manifestly not related to the 50 states. The

only reference to a state by the court is the observation that

“Congress was acting only as a state legislature would in passing a

minimum wage !aw.” Id. at 825. The argument and statements in

the motion filed by the Division of Labor Standards Enforcement

are not supported by and in part inconsistent with the findings and

language of the court in the Schwerman case.

Central Delivery Service v. Burch (D.C. Md) 355 F.Supp. 954,

affirmed, 486 F.2d 1399 (1973) is an aberration that is contrary to

the intent of Congress, contemporaneous decisions of the courts

and recognition of the plenary power by the individual states of

the federal government's jurisdiction of the work hours of motor

carrier safety personnel. Dove v. Coupe (D.C. Cir.) 759 F.2d 167

(1985), is a suit for minimum and overtime wages based upon the

District of Columbia Minimum Wage Act.

The attorney general’s motion cites Ray v. Atlantic Richfield,

435 USS. 151, 171-172 (1978), Huron Cement Co. v. Detroit, 362

U.S. 440, 443 (1960); Service Transfer Co. v. Virginia, 359 U.S.

171, 179 (1959); Bethlehem Co. v. State Board, 330 U.S. 767,

773 (1946); Arkansas Elec. Coop. v. Ark. Public Ser. Comm'n,

461 U.S. 375, 387-389 (1938), in support of the argument that if

a federal agency is authorized to regulate and does not, a state

may do so. However, these cases also hold that states may only

10

exercise their jurisdiction when there is an absence of a Congres-

sional intent to establish a comprehensive, regulatory scheme

which occupies the field. They further hold that when the federal

agency’s failure to exercise its full authority takes on the character

of a ruling, state action is impermissible.

CONCLUSION

For the reasons stated, probable jurisdiction should be noted

and the judgment of the Superior Court of the State of California

should be reversed.

Respectfully submitted,

DANIEL W. BAKER

Attorney for Appellant

Lodi Truck Service,

Inc.

Dated: September 12, 1986

ETA CNN el ila Oates Cho ui hen OO