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November 4, 1959


The opinion of the court was delivered by: John E. Miller, Chief Judge.

This action was brought by the Secretary of Labor pursuant to Sec. 17 of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C.A. § 217, to enjoin future violations by the defendant of the overtime provisions of Sec. 7 of the Act, 29 U.S.C.A. § 207.

The defendant is a general contractor, and the specific violation alleged in the complaint concerns the construction of a new factory building for the Baldwin Piano Company at Fayetteville, Arkansas. The defendant denies in his answer that the construction of this new production and manufacturing facility at Fayetteville is covered by the Fair Labor Standards Act.

The case was tried to the court on August 18, 1959, and was submitted and taken under advisement. Counsel for the parties were requested to submit briefs in support of their respective contentions. The briefs of the parties have been received and have been considered along with the pleadings, testimony, stipulations and exhibits. The court now makes and files herein its Findings of Fact and Conclusions of Law, separately stated.

Findings of Fact


The plaintiff is the Secretary of Labor, United States Department of Labor. The defendant is a citizen of Arkansas and a resident of the Western District of Arkansas, Fayetteville Division, and is doing business under the name of Tune Construction Company.


The Baldwin Piano Company of Cincinnati, Ohio, has for more than ten years past been engaged in the manufacture and production of electronic organs at its Cincinnati, Ohio, manufacturing plant. The electronic organs produced by the Baldwin Piano Company are sold and distributed through Baldwin dealers and representatives in some 250 localities throughout the United States.

Prior to 1958 the price range for Baldwin electronic organs was between $1,800 and $8,000. In the production and sale of the organs, the Baldwin Piano Company is competitive with other leading manufacturers of similar products, and competes on a consumer market with other leading manufacturers of similar products.

For the purpose of enhancing its competitive position on the consumer market, the Baldwin Piano Company planned and engineered a completely new Model 30 electronic organ designed to sell for approximately $900, or almost half the price of its previous lowest priced model. The Model 30 organ utilizes the basic Baldwin patented concepts, but it is more compact and has many structural, mechanical and design differences from the other Baldwin organs.

Due to the favorable labor market and other advantages, the Baldwin Company decided to build a new factory for the production of Model 30 organs at Fayetteville, Arkansas.


The defendant, Carl Tune, d/b/a Tune Construction Company, is a general contractor, and since 1948 has been engaged in all types of construction activities, including residential, commercial and industrial buildings, plants and facilities. He employs approximately 72 men and expects to continue in the business of a general contractor in the future.


On May 14, 1958, the Baldwin Piano Company entered into a contract with the defendant for the preparation of a building site on which its new plant would be located. The company entered into this separate site preparation contract because it was anxious for work to begin, and because there were various details of the design of the plant buildings still to be worked out. On August 1, 1958, the contract covering the actual construction of the buildings was signed. The work on both contracts went on simultaneously and concurrently. The defendant used the same employees on each contract and treated the separate phases as one project. Construction was completed on April 15, 1959.


On May 22, 1958, the Baldwin Company leased space at the Washington County Fairground, located in Fayetteville, for the purpose of enlisting and training local personnel to produce the new Model 30 electronic organ. The plan was to train the new personnel and to move them into the new plant upon its completion.

The Baldwin Company transferred four technical employees and a manager from its Cincinnati plant to Fayetteville for the purpose of recruiting and training new employees. Six young engineering graduates from the University of Arkansas were hired and trained, and they, together with the transferred ...

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