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DURKIN v. BELL

May 1, 1953

DURKIN, SECRETARY OF LABOR,
v.
BELL ET AL.



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 stated.

Findings of Fact

1.

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.

2.

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.

3.

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 ...


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