The opinion of the court was delivered by: GANEY
This is an action instituted by the Administrator of the Wage and Hour Division pursuant to section 17 of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C.A. § 201 et seq., to enjoin the defendant from violating sections 15(a)(2) and 15(a)(5) of the Act because of his failure to pay his employees compensation for overtime and to maintain records in accordance with sections 7 and 11(c), respectively, of the Act. Injunctive action is opposed on the grounds that (1) defendant's employees are not engaged in interstate commerce or in the production of goods for such commerce within the meaning of 7(a) of the Act; and (2) if they are so engaged, the provisions of that section do not apply to them because they are engaged in a retail or retail service establishment within the meaning of Sec. 13(a)(2) of the Act, or they are employed in a bona fide local retailing capacity within the meaning of Sec. 13(a)(1) of the Act.
The parties have agreed that the business conducted by the defendant during the six-month period from July 1 to December 31, 1946, is representative of the character of his business generally. With reference to this representative period of time unless otherwise indicated, the court, from the evidence presented to it, makes the following
1. The plaintiff is William R. McComb, Administrator of the Wage and Hour Division of the United States Department of Labor.
2. The defendant owns and operates an automobile dealer's establishment at 543 N. 15th Street in Allentown, Pennsylvania, at which place he sells new GMC and Divco trucks, GMC and Divco parts and accessories, used trucks and used passenger cars. Servicing and repairing of trucks and passenger cars are also performed there.
4. His business is regularly conducted in a one story building 120 feet square that is divided into three rooms: two small rooms, one of which is used for an office and the other as a department for truck parts and accessories; and a large room used for repair work and for the displaying of trucks.
5. This establishment was opened to the public from 8 A.M. to 5 P.M. six days a week. At present this same schedule is followed except that it closes at 12 noon on Saturdays.
6. During the stipulated period the defendant sold thirty-two new Divco trucks, eleven new GMC trucks, a new freight trailer, ten used trucks, a used school bus and a used passenger car. Five of the trucks had a rated load capacity of less than a ton, forty-three were one to one and one-half tons, and four ranged from three to five tons; the bus was one and one-half tons, the trailer over one and one-half tons.
7. New trucks were sold by him at the manufacturer's list price in the following manner:
(a) The purchaser indicated the type and model desired.
(b) The defendant ordered it from the manufacturer located in the State of Michigan.
(c) The manufacturer either shipped it to defendant's establishment via railroad or ...