(a) Coverage in general. Employees employed in ``producing,
manufacturing, mining, handling, or in any other manner working on''
goods (as defined in the Act, including parts or ingredients thereof)
for interstate or foreign commerce are considered actually engaged in
the ``production'' of such goods, within the meaning of the Act. Such
employees have been within the general coverage of the wage and hours
provisions since enactment of the Act in 1938, and remain so under the
Fair Labor Standards Amendments of 1949.59
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59 H. Mgrs. St., 1949, p. 14; Sen. St., 1949 Cong. Rec., p.
15372.
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(b) Activities constituting actual ``production'' under statutory
definition. It will be noted that the actual productive work described
in this portion of the definition of ``produced'' includes not only the
work involved in making the products of mining, manufacturing, or
processing operations, but also includes ``handling, transporting, or in
any other manner working on'' goods. This is so, regardless of whether
the goods are to be further processed or are so-called ``finished
goods.'' The Supreme Court has stated that this language of the
definition brings within the scope of the term ``production,'' as used
in the Act, ``every step in putting the subject to commerce in a state
to enter commerce,'' including ``all steps, whether manufacture or not,
which lead to readiness for putting goods into the stream of commerce,''
and ``every kind of incidental operation preparatory to putting goods
into the stream of commerce.'' 60
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60 Western Union Tel. Co. v. Lenroot, 323 U.S. 490. See, to
the same effect, Walling v. Friend, 156 F. 2d 429 (C.A. 8); Walling v.
Commet Carriers, 151 F. 2d 107 (C.A. 2); Phillips v. Star Overall Dry
Cleaning Laundry Co., 149 F. 2d 416 (C.A. 2); certiorari denied 327 U.S.
780; Walling v. Griffin Cartage Co., 62 F. Supp. 396, affirmed in 153 F.
2d 587 (C.A. 6). For examples, see paragraphs (c) and (d) of this
section. Employees who are not engaged in the actual production
Activities described in section 3(j) of the Act are not engaged in
``production'' unless their work is ``closely related'' and ``directly
essential'' to such production. See Secs. 776.17-776.19.
However, where employees of a common carrier, by handling or working on
goods, accomplish the interstate transit or movement in commerce itself,
such handling or working on the goods is not ``production.'' The
employees in that event are covered only under the phrase ``engaged in
commerce.'' 61
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61 Western Union Tel. Co. v. Lenroot, 323 U.S. 490. For
examples, see paragraph (c) of this section.
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(c) Physical labor. It is clear from the principles stated in
paragraphs (a) and (b) of this section, that employees in shipping
rooms, warehouses, distribution yards, grain elevators, etc., who sort,
screen, grade, store, pack, label, address or otherwise handle or work
on goods in preparation for shipment of the goods out of the State are
engaged in the production of goods for commerce within the meaning of
the Act.62 The same has been held to be true of employees
doing such work as handling ingredients (scrap iron) of steel used in
building ships which will move in commerce; 63 handling and
caring for livestock at stockyards where the livestock are destined for
interstate shipment as such 64 or as meat products; 65
handling or transporting containers to be used in shipping products
interstate; 66 transporting, within a single State, oil to a
refinery 67 or lumber to a mill,68 where
products of the refinery or mill will be sent out of the State;
transporting parts or ingredients of other types of goods or the
finished goods themselves between processors, manufacturers, and storage
places located in a single State, where goods so transported will leave
the State in the same or an altered form; 69 and repairing
or otherwise working on ships,70 vehicles,71
machinery,72 clothing,73 or other goods which
may be expected to move in interstate commerce.
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62 McComb v. Wyandotte Furn. Co., 169 F. 2d 766 (C.A. 8);
Walling v. Mutual Wholesale Food & Supply Co., 141 F. 2d 331 (C.A. 8);
West Kentucky Coal Co. v. Walling, 153 F. 2d 582 (C.A. 6); Walling v.
Home Loose Leaf Tobacco Warehouse Co., 51 F. Supp. 914 (E.D. Ky.);
Walling v. Yeakley, 3 W.H. Cases 27, modified and affirmed in 140 F. 2d
830 (C.A. 10); Shain v. Armour & Co., 50 F. Supp. 907 (W.D. Ky.);
Walling v. McCracken County Peach Growers Assn., 50 F. Supp. 900 (W.D.
Ky). See also Clyde v. Broderick, 144 F. 2d 348 (C.A. 10).
63 Bracey v. Luray, 138 F. 2d 8 (C.A. 4).
64 Walling v. Friend, 156 F. 2d 429 (C.A. 8).
65 Fleming v. Swift & Co., 41 F. Supp. 825, affirmed in
131 F. 2d 249 (C.A. 7); McComb v. Benz Co., 9 W.H. Cases 277 (S.D.
Ind.).
66 Walling v. Villaume Box & Lbr. Co., 58 F. Supp. 150
(D. Minn.).
67 Mid-Continent Pipe Line Co. v. Hargrave, 129 F. 2d 655
(C.A. 10); Boling v. R. J. Allison Co., Inc., 4 W.H. Cases 500 (N.D.
Okla.).
68 Hanson v. Lagerstrom, 133 F. 2d 120 (C.A. 8).
69 Walling v. Griffin Cartage Co., 62 F. Supp. 696,
affirmed in 153 F. 2d 587 (C.A. 6); Walling v. Comet Carriers, 151 F. 2d
107 (C.A. 2).
70 Slover v. Walthen, 140 F. 2d 258 (C.A. 4).
71 Hertz Drivurself Stations v. United States, 150 F. 2d
923 (C.A. 8); Walling v. Armbruster, 51 F. Supp. 166 (W.D. Ark.); McComb
v. Weller, 9. W.H. Cases 53 (W.D. Tenn.), 17 Labor Cases (CCH) par. 65,
332; Walling v. Strum & Sons, 6 W.H. Cases 131 (D. N.J.), 11 Labor Cases
(CCH) par. 63, 249.
72 Engebretson v. Albrecht, 150 F. 2d 602 (C.A. 7); Guess
v. Montague, 140 F. 2d 500 (C.A. 4).
73 Walling v. Belikoff, 147 F. 2d 1008 (C.A. 2); Campbell
v. Zavelo, 243 Ala. 361, 10 So. 2d 29; Phillips v. Star Overall Dry
Cleaning Laundry Co., 149 F. 2d 416 (C.A. 2), certiorari denied 327 U.S.
780.
These examples are, of course, illustrative rather than exhaustive. Some
of them relate to situations in which the handling or working on goods
for interstate or foreign commerce may constitute not only ``production
for commerce'' but also engaging ``in commerce'' because the activities
are so closely related to commerce as to be for all practical purposes a
part of it. 74 However, as noted in paragraph (b) of this
section, handling or working on goods constitutes engagement in
``commerce'' only and not engagement in ``production'' of the goods when
it is done by employees of a common carrier and is itself the means
whereby interstate transit or movement of the goods by the carrier is
accomplished. Thus,
employees of a telegraph company preparing messages for interstate
transmission, television cameramen photographing sports or news events
for simultaneous viewing at television receiving sets in other State,
and railroad train crews or truck drivers hauling goods from one State
to another are not engaged in the ``production'' of goods by virtue of
such activities, but are covered by the Act only as employees ``engaged
in commerce.''
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74 Slover v. Walthen, 140 F. 2d 258 (C.A. 4); Hertz
Drivurself Stations v. United States, 150 F. 2d 923 (C.A. 8);
Engebretson v. Albrecht, 150 F. 2d 602 (C.A. 7); Walling v. Strum &
Sons, 6 W.H. Cases 131 (D. N.J.).
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(d) Nonmanual work. The ``production'' described by the phrase
``producing * * * or in any other manner working on'' goods includes not
only the manual, physical labor involved in processing and working on
the tangible products of a producing enterprise, but equally the
administration, planning, management, and control of the various
physical processes together with the accompanying accounting and
clerical activities.75 An enterprise producing goods for
commerce does not accomplish the actual production of such goods solely
with employees performing physical labor on them. Other employees may be
equally important in actually producing the goods, such as employees who
conceive and direct policies of the enterprise; employees who dictate,
control, and coordinate the steps involved in the physical production of
goods; employees who maintain detailed and meticulous supervision of
productive activities; and employees who direct the purchase of raw
materials and supplies, the methods of production, the amounts to be
produced, the quantity and character of the labor, the safety measures,
the budgeting and financing, the labor policies, and the maintenance of
the plants and equipment. (For regulations governing exemption from the
wage and hours provisions of employees employed in a bona fide
executive, administrative, or professional capacity, see part 541 of
this chapter.) Employees who perform these and similar activities are an
integral part of the coordinated productive pattern of a modern
industrial organization. The Supreme Court of the United States has held
that from a productive standpoint and for purposes of the Act the
employees who perform such activities ``are actually engaged in the
production of goods for commerce just as much as are those who process
and work on the tangible products'' in the manufacturing plant or other
producing facilities of the enterprise.76
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75 Borden Co. v. Borella, 325 U.S. 679; Hertz Drivurself
Stations. v. United States, 150 F. 2d 923 (C.A. 8); Callus v. 10 E. 40th
St. Bldg., 146 F. 2d 438 (C.A. 2), reversed on other grounds in 325 U.S.
578.
76 Borden Co. v. Borella, 325 U.S. 679, 683.
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