The products of the defendants' enterprises are also purchased by Reznor Manufacturing Company and are used in actual manufacture of goods by the Reznor firm, which goods move regularly and recurrently in interstate commerce.
By its terms, the Fair Labor Standards Act applies to all employees 'engaged in commerce'.
This does not require the employee to be directly engaged in commerce, nor does it require the employee to be engaged even in the production of an article which itself becomes the subject of commerce or transportation among the several states. It is enough that the employee be employed, for example, in an occupation which is necessary to the production of a part of any other articles or subjects of commerce of any character which are produced for trade, commerce or transportation among the several states. Roland Electrical Co. v. Walling, 326 U.S. 657, 66 S. Ct. 413, 90 L. Ed. 383; Tobin v. Alstate Construction Co., 3 Cir., 195 F.2d 577, affirmed Alstate Construction Co. v. Durkin, 345 U.S. 13, 73 S. Ct. 565.
I believe the defendants were engaged in the production of goods for commerce by furnishing water and gas to others who used said products in the manufacture of articles which were subjects of interstate commerce. Alstate Construction Co. v. Durkin, supra; Thomas v. Hempt Brothers, 345 U.S. 19, 73 S. Ct. 568.
Defendants' contention that they are exempt from the provisions of the Act pursuant to Section 13(a)(2), which exempts retail sales or service establishments, is without any basis in law. The courts have uniformly held that the exemption applies only to establishments of a retail character engaged in selling goods or services or both, such as grocery stores, filling stations, barber shops, and beauty parlors, and that the exemption must be deemed inapplicable to water and electric companies. Fleming v. A. B. Kirschbaum Co., 3 Cir., 124 F.2d 567.
Since substantial violations of the overtime and record-keeping provisions of the Fair Labor Standards Act have been demonstrated by the fair weight and preponderance of the evidence, it is my considered judgment that plaintiff is entitled to judgment enjoining and restraining defendants from future violations.
An appropriate order is entered.
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