The opinion of the court was delivered by: FOLLMER
This action was brought by William R. McComb, Administrator of the Wage and Hour Division, United States Department of Labor, plaintiff, under the Fair Labor Standards Act of 1938, Act of June 25, 1938, c. 676, 52 Stat. 1060, 29 U.S.C.A. § 201, et seq. to enjoin defendant, Alstate Construction Company, a Pennsylvania corporation, from violating the provisions of Sections 15(a)(2) and 15(a)(5) of the Act, 29 U.S.C.A. § 215(a)(2, 5). Subsequently, by Stipulation, Maurice J. Tobin, Secretary of the United States Department of Labor, was substituted as party plaintiff.
Defendant is engaged in the production, sale, distribution and further application of a bituminous concrete material, known as amesite. Its operations are wholly in Pennsylvania, where its material is processed at its three separate plants, namely, Hanover in Adams County, Cressona in Schuylkill County, and Naginey in Mifflin County.
Amesite consists of the following ingredients, limestone, naptha, asphalt filler and lime, all of which is quarried or manufactured and purchased in Pennsylvania with the exception that about eight thousand gallons of asphalt are received from a refinery in Baltimore, Maryland, and pumped from railroad tank cars into defendant's storage tanks each week at the Hanover plant. The operation of receiving, handling and pumping the asphalt takes from four to five hours and is performed by any employee available at the time.
The said bituminous concrete materials, known also as HE, a cold mix, and ID2, a hot mix, otherwise known as macadam blacktop, are primarily marketed by defendant as follows:
(1) Contracts with the Commonwealth of Pennsylvania and many of its political subdivisions, for the sale of material and for material and labor for constructing, reconstructing, resurfacing or repairing highways, roads, and streets connecting with such highways, all of which are accessible to and regularly used by general vehicular traffic, including traffic moving between points in Pennsylvania and points in other states.
(2) Contracts with interstate railroad companies, commercial and industrial firms engaged in the production of goods for commerce for sale of material and for material and labor to be used in the construction, reconstruction, repair or maintenance of roads, railroad crossings, parking areas and other facilities of such firms.
(3) Contracts with private persons and others having no interstate activity and not engaged in interstate commerce or the production of goods for commerce, for sale of material and for material and labor to be used in construction, reconstruction, repair and maintenance of road surface.
The period covered by the inspection was from June 30, 1945, through June 30, 1948. For this period the total volume of business done by defendant was $ 1,172,276.70, as follows:
Cressona Plant, Total volume $ 643,334.84 distributed as follows:
Pennsylvania Department of Highways 53.96% or $ 347,177.55
Townships 9.99% or $ 64,327.68
Buroughs 3.32% or $ 21,362.45
Industrial 13.23% or $ 85,135.69