The opinion of the court was delivered by: John E. Miller, District Judge.
The plaintiff as Secretary of Labor instituted this action
under Section 17 of the Fair Labor Standards Act of 1938, 52
Stat. 1060, as amended in 1949, 63 Stat. 910, 29 U.S.C.A. § 201
et seq., to enjoin the defendant from violating the overtime
compensation and record keeping provisions of the Act.
The answer of defendant was filed on March 9, 1953, and on the
same date defendant propounded to the plaintiff nine
interrogatories under Rule 33, F.R.C.P., 28 U.S.C.A. The
interrogatories were answered by plaintiff on March 24, 1953. On
April 1, 1953, plaintiff propounded to defendant seven
interrogatories under the rule, which interrogatories were
answered by defendant on April 27, 1953.
On April 13, 1953, the Court set the case for trial on its
merits on April 29, 1953, and at the trial plaintiff introduced
six witnesses, together with exhibits to their testimony,
including the defendant, Robert B. Bell, who was called for cross
examination under Rule 43(b), F.R.C.P.
The defendant, together with exhibits to his testimony, was the
only witness in his behalf.
At the conclusion of the trial the case was submitted and the
Court advised the parties that findings of fact and conclusions
of law would be filed as soon as might reasonably be done, and
upon which the judgment of the Court would be entered, and the
Court after considering the pleadings, the ore tenus testimony of
the witnesses, and the exhibits, now makes and files the
following findings of fact and conclusions of law, separately
The plaintiff, Martin P. Durkin, is the Secretary of Labor,
United States Department of Labor, and the suit was filed by him
in his official capacity.
The defendant is a citizen of the State of Arkansas and resides
in the City of Mena, Polk County, within the Fort Smith Division
of the Western District of Arkansas and is now and was at all
times material herein the sole owner and operator of a radio
station under the name and style of KENA Broadcasting Company. In
the operation of the radio station he engages in commercial radio
broadcasting and in receiving, handling, transmitting and
disseminating news and communications in interstate commerce.
The defendant has been operating the station for approximately
two years. During the latter part of April, 1952, the business
was investigated by Harold A. Loser, an investigator of the Wage
and Hour Division of the Department of Labor, and at that time
the investigator advised the defendant that he was not keeping
proper records of the hours worked by his employees, but did not
advise defendant wherein his records were defective except that
he did leave with the defendant a bulletin which merely directed
that a person engaged in business in interstate commerce to which
the Fair Labor Standards Act applied should in general keep such
records as to reveal the names of the employees, the hours worked
and their rate of pay. This investigator did not leave with the
defendant any official information or regulations and evidenced
no inclination or desire to assist the defendant in setting up a
system of records that might meet the technical requirements of
the Wage and Hour Division.
In July, 1952, and in the early part of October, 1952, the
defendant was again investigated by Investigator Shelby R. Gott,
and Gott positively refused to offer any suggestions of any kind
to the defendant or to advise him in any manner as to the records
that plaintiff is now insisting were not properly kept.
The defendant in his testimony detailed what occurred between
him and Investigator Gott and the refusal of the investigator to
offer any suggestions notwithstanding the request of the
defendant and the statement of the defendant to the investigator
that he desired to fully comply with the law. This investigator
was present in the court room at the time and heard the testimony
of the defendant, but for some reason the investigator was ...