(a) Existing production establishments. (1) Covered production
facilities within the concept of the Act include mines, oil wells,
banks, manufacturing, packing and processing plants, filtration, sewage
treatment, electric power and water plants, shipyards, warehouses in
which goods are broken down, packed or handled preparatory to being sent
in interstate commerce, and similar establishments.
(2) The repair or maintenance of a covered production unit is
essential for its continued operation and has a close and immediate tie
with the production of goods for commerce.17 The Act is also
applicable to other construction which is an integral part of a covered
production unit, such as the replacement, enlargement, reconstruction,
extension or other improvement of the premises, the buildings, the
machinery, tools and dies and other equipment. Functionally such work is
like maintenance and repair and is necessary for the continued,
efficient and effective operation of the facility as a unit. Thus the
construction of new appurtenances of a covered production establishment
such as parking aprons, access roads, railroad spurs, drainage ditches,
storm, waste and sanitary sewers or adjacent integrated buildings is
subject to the Act. Similarly, the Act applies to the installation of
telephone, electric, gas
and water lines, machinery and other equipment on the premises of such a
facility.
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17 Kirschbaum Co. v. Walling, ante; Walling v. McCrady
Const. Co., ante.
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(3) On the other hand, the production and furnishings, within the
State, of construction materials, such as sand, gravel, brick and other
construction materials produced for general local use, is not covered
even if the producer also supplies such materials to construction
companies which use them within the State in the repair, maintenance or
improvement of facilities for the production of goods for commerce.
Employees of the materialman in such a situation would not have such a
close and immediate tie to the production of goods for commerce as to be
considered ``closely related'' and ``directly essential'' to such
production. 18
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18 See General Coverage Bulletin, Sec. 776.19(b)(3); but see
Sec. 776.19 (b) (1), (2) and (3); on coverage of furnishing materials
``specially designed'', or meeting particular specifications, for use in
production of particular kinds of goods for commerce; and paragraph (d)
of this section, on coverage of producing and furnishing materials for
use in construction work on instrumentalities of commerce.
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(b) Utilities which serve production establishments. The Act applies
to employees of public utilities which furnish gas, electricity, water
or fuel to firms engaged within the same State in manufacturing,
processing, producing, or mining goods for commerce. 19
Construction work performed upon the plant and facilities of such a
utility is covered as in the case of any other covered production
establishment. 20 The extension of the lines or other
facilities of a covered utility for the first time to the premises of an
establishment which produces goods for commerce would be subject to the
Act, because such extension is simply an improvement or enlargement of
an existing covered utility. 21 Furthermore, the maintenance
or repair of the wires, pipes, or other conduits of a covered utility
which serves business and manufacturing as well as residential areas
would also be within the Act. On the other hand, extension or repair of
lines or other facilities serving only residential areas would not be
covered unless the electricity, gas, fuel, or water comes from out of
the State.
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19 House Manager's Statement, 1949 Amendments.
20 See decisions cited in footnotes 10 and 11, of this
subpart.
21 Meeker Cooperative Light & Power Ass'n v. Phillips,
158 F. (2d) 698 (C.A. 8); Cf. New Mexico Public Service Co. v. Engel,
145 F. (2d) 636 (C.A. 10); Lewis v. Florida Power & Light Co., 154 F.
(2d) 75 (C.A. 5).
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(c) New construction which is not integrated with existing
production facilities. (1) Construction of a new factory building, even
though its use for interstate production upon completion may be
contemplated, will not ordinarily be considered covered. However, if the
new building is designed as a replacement of or an addition or an
improvement to, an existing interstate production facility, its
construction will be considered subject to the Act.
(2) If the new building, though not physically attached to an
existing plant which produces goods for commerce, is designed to be an
integral part of the improved, expanded or enlarged plant, the
construction, like maintenance and repair, it would be subject to the
Act. 22
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22 Walling v. McCrady Const. Co., ante.
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(d) Production of materials for use in construction work on
interstate instrumentalities. (1) The Act applies to employees who are
engaged, at the job site or away from it, in the production of goods to
be used within the State for the maintenance, repair, extension,
enlargement, improvement, replacement or reconstruction of an
instrumentality of interstate commerce. The goods need not go out of the
State since the Act applies to the production of goods ``for'' commerce,
including for use in commerce, and is not limited to ``production of
goods for transportation in commerce,'' that is, to be sent across State
lines. 23
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23 Alstate Construction Co. v. Durkin, 345 U.S. 13; Tobin v.
Johnson, 198 F. (2d) 130 (C.A. 8); Mitchell v. Emulsified Asphalt
Products Co., 222 F. (2) 913 (C.A. 6).
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(2) The Act would also apply to the production of such items as
electricity, fuel or water, for use in the operation of railroads or
other instrumentalities of commerce. 24 Therefore, as in the
case of other production units, the maintenance, repair or other
improvement of the premises or buildings or
the appurtenances, including the machinery, tools and dies and
equipment, of the facilities which are used to produce such goods, are
subject to the Act.
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24 Sections 776.19(b)(2) and 776.21. See also paragraph
(b) of this section.
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(3) Coverage also extends to employees who produce sand, gravel,
asphalt, cement, crushed rock, railroad ties, pipes, conduits, wires,
concrete pilings and other materials which are to be used in the
construction of instrumentalities which serve as the means for the
interstate movement of goods or persons.
(4) This does not mean, however, that in every case where employees
produce such materials which are used within the State in the
maintenance, repair, or reconstruction of an instrumentality of
commerce, the production of such materials is necessarily considered as
production ``for'' commerce. A material supply company may be engaged in
an independent business which is essentially local in nature, selling
its materials to the usual miscellany of local customers without any
particular intent or purpose of supplying materials for the maintenance,
repair, or reconstruction of instrumentalities of commerce, and without
any substantial portion of its business being directed to such specific
uses. Employees of such an ``essentially local business'' are not
covered by the Act merely because as an incident to its essentially
local business, the company, on occasion, happens to produce or supply
some materials which are used within the State to meet the needs of
instrumentalities of commerce. 25
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25 See Secs. 776.19 (a) and (b) and 776.21(b)(3). See also
cases cited in footnote 22 of this subpart.
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