In the case of Walling v. Craig, supra (53 F.Supp. 481), cited by the defendants the court considered the claim of coverage by the Act made on behalf of a large number of employees of a road repair and reconstruction company. The court classified the employees as follows:
'A. Persons engaged upon the roadway.' (In this category it placed power patrol and power shovel operators, truck drivers, etc.)
'B. Firemen or boiler operators.'
'C. Distributor truck drivers and tank truck drivers.'
'D. Office employees.'
'E. Machine shop employees.'
'F. Off-the-road employees.'
In this latter category it included employees who were engaged exclusively
'In opening such pits, excavating materials therefrom, screening or mixing the same therein and loading it upon trucks for transportation to the highway under contract or to stock pile off the road. In other instances, defendants' contracts required the production of 'plant mix' for application to the highway. In such case, defendants operated bituminous mixing plants off the road where bituminous materials and aggregate were proportioned and mixed to be hauled thence to the road site for application on the highway.
'The work of all such employees operating off the road consisted exclusively in the preparation and loading of materials for use within the state on the highway and did not require them to enter upon the highway in question.' 53 F.Supp.at page 482.
Concerning these employees the court formulated the following conclusions of law: 'Defendants' employees employed off the road and described generally as 'off-the-road employees' who produce and prepare local materials as sand, gravel, rock or earth, or who operate stationary off-the-road bituminous plants, are not engaged in the production of goods for commerce or in commerce or in work so closely related thereto as to be practically a part thereof and are not within the coverage prescribed by the Act.' 53 F.Supp.at page 483.
It is true that this case was decided by a district court in 1943 and antedates the policy promulgated by the Administrator of Wages and Hours Division of 1945. Neither that fact nor the disagreement with the decision by the plaintiff detract from its logic.
In the case cited by defendants, Crabb v. Welden Bros., supra, Crabb and other plaintiffs sued as employees of the defendants, road construction contractors, to come within coverage of the Act for services rendered on the Alcan Highway in Alaska. The court found that no employee was engaged in the production of goods for interstate commerce, for the construction of the highway was not the producing of goods and cited the case of Nieves v. Standard Dredging Corporation, 1 Cir., 152 F.2d 719, 720. Some of the employees were permitted to recover under the Act as workers engaged in interstate commerce. Crabb failed to recover and the court held: 'Mr. Crabb, however, has not established that he was so engaged in interstate commerce. He was not working on the highway or directly carrying supplies to and for it. He was what is known in the authorities as an 'off the road employee' and was not so closely connected with the commerce and transportation as to be a part of it. McLeod v. Threlkeld, 319 U.S. 491, 63 S. Ct. 1248, 87 L. Ed. 1538; Industrial Accident Commission of State of California v. Davis, 259 U.S. 182, 42 S. Ct. 489, 66 L. Ed. 888; E. C. Schroeder Co. v. Clifton, 10 Cir., 153 F.2d 385; Hallstein v. Pennsylvania R. Co., 6 Cir., 30 F.2d 594; Walling v. Craig, D.C., 53 F.Supp. 479, 482; Oliphant v. Kaser Construction Co., decision by Judge Hays in the District Court of Iowa in and for Dallas County.' 65 F.Supp.at page 375.
Again the plaintiff voices disagreement with this decision. Nevertheless it gave logical recognition to the 'off the road' doctrine and is in that respect akin to the situation of the workers in the case sub judice.
The business in which defendants' employees are engaged is local in nature. Ultimately its product will be employed upon highways carrying interstate commerce. There is no immediacy to commerce on their part. The material they produced is picked up on the premises of the defendants in trucks of, and by, the county, hauled to highways where needed, and they have nothing to do with its transportation or its final incorporation into the highways. There is no more reason to say that they are engaged in the production of goods for commerce than to say they are engaged in commerce. They come strictly within the classification well adopted by other courts of 'off the road' employees and are not contemplated for coverage by the Act. Hence there must be judgment in favor of the defendants.
Findings of Fact.
The facts are found as stipulated and set forth herein.
Conclusions of Law.
1. Defendants' employees are not engaged in the production of goods for commerce within the purview of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq.
2. Defendants have not violated the provisions of §§ 15(a)(2) and 15(a)(5) of the said Act.
3. Judgment should be entered in favor of the defendants.