Zehring

The plaintiffs seek overtime wages, penalties, attorneys’ fees and costs under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq.

During the period of their employment they worked on the repair of tractors, drag lines, concrete mixing trucks, dipper sticks, dump trucks and other similar paraphernalia and equipment owned or operated by the defendant.

The defendant’s business was described by its President as material dealer. It sold building materials such as rock, sand, cement, lime, brick, and similar things to the general public from its several yards or warehouses. It also sold rotary mud, which is sold only for use in drilling operations of oil wells. The defendant did excavating work and general contracting, such as excavating and grading public and private roads, levees, irrigation ditches and the like, but did no building construction. And while the defendant sold ready mixed concrete, it did not do any concrete construction work.

All of the material sold by plaintiff was used or consumed by the purchaser at the place where it was delivered by the defendant. None of it was sold for resale, or resold.

About 5% of defendant’s gross business during the past…