The regular pick up of empty containers destined for out-of-state bottling facilities has been held to both place employees in interstate commerce and exempt them from the overtime provisions of the FLSA under the motor carrier exemption. Opelika Royal Crown Bottling Co. v. Goldberg, 299 F.2d 37, 42-43 (5th Cir. 1962); Walling v. Silver Bros., 136 F.2d 168, 171 (1st Cir. 1943). In Opelika, the Fifth Circuit considered a very similar situation.

In the absence of special orders or pre-existing contracts or understandings, the branch is dealing directly with the general trade through its "salesmen". See Walling v. Goldblatt Bros., 7 Cir., 128 F.2d 778, certiorari denied, 318 U.S. 757, 63 S.Ct. 528, 87 L.Ed. 1130; Walling v. American Stores Co., 3 Cir., 133 F.2d 840; Allesandro v. C.F. Smith Co., 6 Cir., 136 F.2d 75; Walling v. Silver, 1 Cir., 136 F.2d 168; Walling v. L. Wiemann Co., 7 Cir., 138 F.2d 602, 150 A.L.R. 878, certiorari denied 321 U.S. 785, 64 S.Ct. 782; Walling v. Block, 9 Cir., 139 F.2d 268, certiorari denied 321 U.S. 788, 64 S.Ct. 787; Walling v. Mutual Wholesale Food Supply Co., 8 Cir., 141 F.2d 331; A.H. Phillips, Inc. v. Walling, 1 Cir., 144 F.2d 102. On the facts of this case we are of the opinion that there is a substantial break in the movement of the products involved here at the warehouse as to warrant dividing the commerce involved into its interstate and intrastate phases.

But here, unlike Walling v. Jacksonville Paper Co., there is nothing in the record before us to support those statements nor to impeach the accuracy of the conclusion of the Supreme Judicial Court of Maine that when the merchandise coming from without the state was unloaded at respondent's place of business its `interstate movement had ended.'" Since Mutual bought for Thomas stores under contract requiring Thomas to take only from Mutual and since this was one integrated business, Jacksonville Paper Co. decision is controlling here. Some emphasis is added by the situation that the control of Mutual was such that it often determined independently that certain merchandise should go to the Thomas stores. Cases, in Courts of Appeals, involving application of this Act to wholesalers or warehousemen are Allesandro v. C.F. Smith Co., 6 Cir., 136 F.2d 75; Walling v. Silver Bros. Co., 1 Cir., 136 F.2d 168; Walling v. American Stores Co., 3 Cir., 133 F.2d 840; De Loach v. Crowley's, 5 Cir., 128 F.2d 378; Walling v. Goldblatt Bros., 7 Cir., 128 F.2d 778, certiorari denied 318 U.S. 757, 63 S. Ct. 528, 87 L.Ed. 1130; Super-Cold Southwest Co. v. McBride, 5 Cir., 124 F.2d 90; Jax Beer Co. v. Redfern, 5 Cir., 124 F.2d 172; Swift Co. v. Wilkerson, 5 Cir., 124 F.2d 176; and Jewell Tea Co. v. Williams, 10 Cir., 118 F.2d 202. Some of these cases were determined before the decision in the Jacksonville Paper Co. and Higgins cases. This case was tried before decision of the Jacksonville Paper Co. case. At the time of trial, much authority in similar cases in the Courts of Appeals was opposed to the doctrine announced later in the Jacksonville Paper Co. case.

We do, however, agree that truck drivers and their helpers when engaged in unloading produce from freight cars coming from out of the State and when engaged for a substantial part of their time in hauling such produce from freight cars to defendant's place of business are within the coverage of Sec. 6 (Title 29 U.S.C.A. § 206), or the minimum wage provision of the Act, but we hold that truck drivers are not subject to the overtime provisions of the Act. See Southland Gasoline Company v. Bayley, 63 S.Ct. 917, 87 L.Ed. ___, decided May 3, 1943; Walling v. Silver Brothers Co., 1 Cir., 136 F.2d 168, decided May 21, 1943. Sec. 13(b) (Sec. 213(b), Title 29 U.S.C.A.), provides:

ECF No. 30 at 13. See, e.g., Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1025 (10th Cir. 1992) (holding that "[t]he regular pick up of empty containers destined for out-of-state bottling facilities has been held to both place employees in interstate commerce and exempt them from the overtime provisions of the FLSA under the motor carrier exemption") (citing Opelika Royal Crown Bottling Co. v. Goldberg, 299 F.2d 37, 42-43 (5th Cir. 1962); Walling v. Silver Bros., 136 F.2d 168, 171 (1st Cir. 1943)). See ECF No. 30-1 at 9-10, 15-17, 33, 40.

Where some inconsequential incident of interstate commerce happens to result from the general conduct of a fundamentally intrastate business, or where an interstate sale is a casual or occasional one, the rule of "de minimis non" is applicable, and the Act does not apply. Walling v. Jacksonville Paper Co., 317 U.S. 564, 572, 63 S.Ct. 332, 87 L.Ed. 460; Walling v. Silver Bros. Co., 1 Cir., 136 F.2d 168, 169; Spier v. Gulf Coast Beverages, D.C.S.D.Fla., 50 F. Supp. 653; Hooks v. Nashville Breeko Block Tile Co., D.C.M.D.Tenn., 39 F. Supp. 369; Goldberg v. Worman, D.C.S.D.Fla., 37 F. Supp. 778; Prescription House v. Anderson, D.C.S.D.Texas, 42 F. Supp. 874. See also: Schmidt v. People's Telephone Union, 8 Cir., 138 F.2d 13, 15; Ling v. Currier Lumber Co., D.C.E.D.Mich. 50 F. Supp. 204, 207.

Such employees who actually drive trucks obviously are engaged in activities which affect the safety of operation. It appears that at the present time the general classification of drivers has been extended to include drivers, helpers and loaders. Dallum v. Farmers Co-operative Trucking Association, D.C., 46 F. Supp. 785; Epps v. Weathers, 49 F. Supp. 2; Walling v. Silver Bros. Co., 1 Cir., 136 F.2d 168. It also appears well settled at the present time that mechanics who actually perform work on trucks themselves such as inspecting and repairing lights, brakes, transmissions, differentials, motors and steering apparatus are likewise engaged in activities which affect the safety of operation. Wolfe v. Union Transfer Storage Co., D.C., 48 F. Supp. 855; Robbins v. Zabarsky, D.C., 44 F. Supp. 867; Walling v. Silver Bros. Co., supra.

While so engaged for a substantial portion of their time, if the defendant had been a wholesaler, they would have been engaged in interstate commerce and within the coverage of the minimum wage provision of the Act but without the overtime provisions. Jax Beer Co. v. Redfern, 5 Cir., 124 F.2d 172, 174; Walling v. Goldblatt Bros., 7 Cir., 128 F.2d 778(6), 782; Southland Gasoline Co. v. Bayley, 63 S.Ct. 917, 87 L.Ed. ___, decided May 3, 1943; Walling v. Silver Bros. Co., 1 Cir., 136 F.2d 168, decided May 21, 1943; Reuter v. Walling, supra. How much of their time, however, was given to such hauling has not been shown.

(3) That the truck drivers are exempt from the provisions of Section 7 (maximum hours) of the Act under the provisions of Section 13(b)(1). It is settled in view of the decisions in Southland Gasoline Co. v. Bayley (Richardson v. James Gibbons Co.), 63 S.Ct. 917, 87 L.Ed. ___, United States Supreme Court, dated May 3, 1943, and Walling v. Silver Bros. Co., Inc., 1 Cir., 136 F.2d 168 dated May 21, 1943 that the truck drivers referred to in the stipulation are exempt from the provisions of Section 7 of the Act under Section 13(b)(1). They were engaged in transporting goods in interstate commerce as will be seen later.

[6] Where it is established, however, that a substantial part of the employee's activities is so intimately connected with or related to interstate commerce or the movement thereof that it can reasonably be said to be an essential part of the production or transportation of goods for such commerce, the employee is covered by the act. Kirschbaum Co. v. Walling, supra; Walling v. Jacksonville Paper Co., supra; Collins v. Kidd Dairy Ice Co. (C.C.A. 5th), 132 F.2d 79; Walling v. Peoples Packing Co. (C.C.A. 10th), 132 F.2d 236; Walling v. Silver Bros. Co. (C.C.A. 1st), 136 F.2d 168; Divine v. Levy (D.C. La.), 39 F. Supp. 44; Camfield v. West Texas Utilities Co. (D.C. Tex.), 44 F. Supp. 847; Samuels v. Houston (D.C. Ga.), 46 F. Supp. 364; Ashenford v. L. Yukon Sons Produce Co., 172 S.W.2d (Mo.App.) 881; In re New York Title Mtg. Co., 179 Misc. 789, 39 N.Y.S. 2d 893; Horton v. Wilson Co., 223 N.C. 71, 25 S.E.2d 437; Brooks Packing Co. v. Henry, 192 Okla. 533, 137 P.2d 918; Johnson v. Phillips-Buttorff Mfg. Co., 178 Tenn. 559, 160 S.W.2d 893.