An enterprise may be engaged in the wholesale or bulk distribution
of petroleum products, within the meaning of section 7(b)(3), without
being exclusively so engaged. Such engagement may be only one of the
several related activities, performed through unified operation or
common control for a common business purpose, which constitute the
enterprise (see Sec. 794.106) under section 3(r) of the Act. If engaging
in such distribution is a regular and significant part of its business,
an enterprise which meets the other tests for exception under section
7(b)(3) will be relieved of overtime pay obligations with respect to
employment of its employees in such distribution activities, in
accordance with the intended scope (see Sec. 794.101) of the exemption.
The same will be true with respect to employment of its employees in
those related activities which are customarily performed as an incident
to or in conjunction with the wholesale or bulk distribution of
petroleum products in the enterprises of the industry engaged in such
distribution. There is no requirement that engaging in such activities
constitute any particular percentage of the enterprises's business.
However, in the case of an enterprise engaged in other activities as
well as in the wholesale or bulk distribution of petroleum products
(including related activities customarily performed in the enterprises
of the industry as an incident thereto or in conjunction therewith), an
employee employed in such other activities of the enterprise is not
engaged in employment which the exemption was intended to reach (see
Sec. 794.101). Such an employee is not brought within the exemption by
virtue of the fact that the enterprise by which he is employed is
engaged with other employees in the distribution activities described in
section 7(b)(3). This accords with the judicial construction of other
exemptions in the Act which are similarly worded. See Connecticut Co. v.
Walling, 154 F. 2d 522,
Certiorari denied, 329 U.S. 667; Northwest Airlines v. Jackson, 185 F.
2d 74; Davis v. Goodman Lumber Co., 133 F. 2d 52; Fleming v. Swift &
Co., 41 F. Supp. 825, aff'd 131 F. 2d 249.
