of Pennsylvania, having its principal office, place of business, and a manufacturing plant at Biglerville, Adams County, Pennsylvania, with additional plants at Gardners, Adams County, Pennsylvania, and Inwood, Berkely County, West Virginia.
2. C. H. Musselman Company is engaged in its three aforementioned plants in the production, sale and distribution of dried apple pomace.
3. Substantially all of the pomace produced at each of the three plants of the C. H. Musselman Company is produced for interstate commerce, or is used in the production of goods for interstate commerce, and such pomace or goods has been shipped, delivered, transported, offered for transportation and sale in interstate commerce, with knowledge that shipment, delivery or sale thereof in interstate commerce is intended from defendant's said places of business to other states.
4. The Administrator has found that C. H. Musselman Company is and was at all times mentioned in the Complaint engaged in all of its plants in the first processing and canning of perishable or seasonal fresh fruits and vegetables, an industry of a seasonal nature within the meaning of Section 7(b)(3) of the Fair Labor Standards Act of 1938 and of the Regulations issued thereunder.
5. Beginning approximately September 1 of each year, and for about 14 weeks thereafter, apples are delivered to the defendant's plants. There they are weighed and, as needed, are processed.
6. The apples are first deposited in a trough and, by a current of water in that trough, are conveyed to the cannery from the warehouse. From the trough the apples are ejected on to a sorter constructed of moving link chain belts with holes of various sizes.
7. Apples larger than 2 1/4 inches in diameter are conveyed to the canning room where they are carried through a series of paring and coring machines, after which they are conveyed past workers, who remove apples unsuitable for slicing and canning, and who remove remaining peel or bruised specks from such apples.
8. Apples smaller than 2 1/4 inches in diameter fall through the holes in the first series of belts on to a conveyor, to be carried to the press room with the apple peelings and cores, and with the whole apples unsuitable for slicing and canning, and with the bruised specks and peelings removed by the workers referred to above, and also with the remnants of cores from the apple slicing machines.
9. All the foregoing are ground into a mash, which is then subjected to high pressures to extract the juice, after which the grinding is repeated, and the mash is again subjected to high pressures.
10. The solid pulp remaining after the second pressing called 'green pomace' is again broken up into fine pieces and conveyed to kilns, where the green pomace is dried, which drying process is conducted by employees, whose overtime hours are involved here. The dried pomace is then packed into bags and stored for use in making pectin.
11. The small whole apples conveyed directly from the sorter to the grinding machines constitute not less than 25 per cent. and not more than 50 per cent. of the material placed on the grinding machines.
12. The dried pomace is used solely for making pectin, part of the pomace being used by the defendant to make pectin for use in making jellies, and the remainder being sold to other food processors for making pectin.
13. During the weeks not exceeding 14 in the aggregate in any calendar year since 1940, for which the employer claimed the benefit of the exemption under Section 7(c) of the Fair Labor Standards Act of 1938, some of the employees engaged in pomace drying operations at each of the defendant's plants have worked in excess of 40 hours per work week and have not been paid overtime for the hours worked beyond 40 in the work week, except for voluntary payments of time and one half for all Sundays and holidays.
14. During the weeks not exceeding 14 in the aggregate in any calendar year since 1940, for which the employer claimed the benefit of the exemption under Section 7(b)(3) of the Fair Labor Standards Act of 1938, each employee engaged in pomace drying operations at each of the defendant's plants has been paid at a rate not less than one and one half time the regular rate at which such employee is employed for all time in excess of 56 hours during any work week of such period or in excess of 12 hours in any work day during any work week of such period, and has been paid the regular rate only for hours worked in excess of 40 and less than 56 during such weeks, except that the employer voluntarily paid at time and one half rates for work performed on Sundays and holidays.
15. During no calendar year since October 24 1940, has C. H. Musselman Company engaged in pomace drying operations at any of its plants for a period in excess of 28 weeks in the aggregate in any calendar year.
16. The employees engaged in pomace drying operations include employees who spread the green pomace on the metal kiln floors, attend the coke fires under the kilns and turn the pomace while in the process of drying, and who remove the pomace when dried from the kiln floors and place it on a conveyor.
17. The apples, cores, peelings, and apples peeled but not sliced; that is, the material submitted to the processing resulting in the green pomace, are all fresh fruit or fresh parts of fresh fruit.
Conclusions of Law
1. Defendant's employees engaged in drying of apple pomace are engaged in the production of goods for interstate commerce.
2. The overtime requirements of the Fair Labor Standards Act of 1938, Sec. 7(a), are not applicable to the defendant's employees who are engaged in the drying of apple pomace.
3. The drying of apple pomace, as performed in defendant's plants, and by those employees described in Finding of Fact number 16, above, is 'first processing' of perishable or seasonal fresh fruits, as included in Sec. 7(c) of the Fair Labor Standards Act of 1938.
4. The drying of apple pomace by the defendant's employees is within the exemption from the overtime requirements of the Fair Labor Standards Act which exempts an 'employer engaged in the first processing of * * * perishable or seasonal fresh fruits or vegetables' from the provisions of Sec. 7(a).
5. The Administrator has found the first processing of apples to be an industry of a seasonal nature and a fortiori the drying of apple pomace being first processing of the apple, the partial exemption from the overtime provisions of the Act, contained in Sec. 7(b)(3) of the Fair Labor Standards Act of 1938 is applicable to those employees engaged in apple pomace drying.
6. Defendant has not violated either Sec. 15(a)(1) or Sec. 15(a)(2) of the Fair Labor Standards Act of 1938.
7. Plaintiff is not entitled to the entry of a decree enjoining the defendant.
8. The prayer of the petition should be denied.
Now, October 28, 1947, the prayer of the plaintiff for an injunction is denied, and the action is dismissed.