The opinion of the court was delivered by: John E. Miller, Chief Judge.
On September 12, 1958, the plaintiff, James P. Mitchell,
Secretary of Labor, U.S. Department of Labor, filed his complaint
against defendant, Goodyear Tire and Rubber Company, to enjoin
the defendant from violating the provisions of Section 15(a)(3)
of the Fair Labor Standards Act, 29 U.S.C.A. § 215(a)(3).
Plaintiff alleged that the defendant was engaged in interstate
commerce and in the production of goods for interstate commerce;
that on or before June 23, 1958, M.C. Cole and other employees of
the defendant filed a complaint against defendant with the
Secretary of Labor, U.S. Department of Labor, and his duly
authorized representative, in which they alleged and claimed that
defendant had failed and refused to pay them overtime
compensation under Section 7 of the Fair Labor Standards Act,
29 U.S.C.A. § 207; that defendant was then, and at all times
material herein, employing the said employees at its place of
business in Fort Smith, Arkansas, in procuring, storing, and
wholesale distribution of tires and tubes, household appliances
and other goods, substantially all of which had been ordered and
received from suppliers outside the State of Arkansas, and were
being sold, shipped and delivered to points outside the State and
were moving in interstate commerce.
That during the period subsequent to on or about June 23, 1958,
defendant had violated and was then violating the provisions of
Sec. 15(a)(3) of the Act in that it had repeatedly discriminated
against and discharged the said M.C. Cole and other employees
because they had filed complaints related to the Act, or because
they were about to testify in an official investigation or
proceeding instituted under the Act.
That the defendant has since the effective date of the Act
repeatedly violated the provisions of the Act, and that a
judgment enjoining and restraining the violations herein alleged
is specifically authorized by Section 17 of the Act, 29 U.S.C.A.
The prayer of the complaint is (1) that the defendant, its
servants, agents, and employees and other persons acting or
claiming to act in its behalf and interest be permanently
enjoined and restrained from violating the provisions of Sec.
15(a)(3) of the Act; (2) that defendant be ordered to immediately
reinstate and reemploy the said M.C. Cole and other employees
discharged in violation of Sec. 15(a)(3) of the Act; and (3) that
defendant be ordered to pay the said M.C. Cole and all other
employees unlawfully discharged for the loss of wages sustained
by reason of their discharge in violation of Sec. 15(a)(3).
On September 30, 1958, the defendant filed its answer in which
it specifically denied the allegations of the complaint.
The case proceeded to trial to the court without a jury on
January 28, 1959, and at the conclusion of the testimony and
arguments of counsel for the respective parties, the case was
submitted and taken under consideration, and now, having
considered the ore tenus testimony of the witnesses with the
exhibits to said testimony, the oral arguments of counsel and
briefs submitted in support of their respective contentions, the
court makes and files herein its formal Findings of Fact and
Conclusions of Law.
The plaintiff is the Secretary of Labor, U.S. Department of
Labor. The defendant is a corporation organized and existing by
virtue of the laws of the State of Ohio and is authorized to
engage in business in the State of Arkansas, where it maintains
an office and wholesale establishment and warehouse in the City
of Fort Smith, Arkansas.
At the beginning of the trial the parties through their
attorneys filed the following stipulation:
"That at all times material to this action and
subsequent to December 1, 1957, defendant and
employees of its said establishment have regularly
each workweek procured, ordered, received and stored
new and used automobile and truck tires and tubes,
household appliances and other goods in substantial
quantities from sources and suppliers located outside
the State of Arkansas; and have regularly each
workweek during said period sold, shipped and
delivered substantial quantities of such goods to
customers located in the States of Oklahoma and
M.C. Cole was first employed in 1951 by defendant as a "tire
changer" in and about its place of business in Fort Smith,
Arkansas, and continued as such employee until June 25, 1958,
with the exception of two years that were spent in the United
On June 23, 1958, M.C. Cole and another employee, Leonard L.
Embry directed a letter to E.O. Hicks of the Wage and Hour
Division, Department of Labor, ...