The opinion of the court was delivered by: KALODNER
Upon consideration of the bill of complaint as amended and answer thereto, and after hearing the testimony of witnesses and argument of counsel, I make the following findings of fact:
1. Defendant is a New York corporation having its principal place of business at 621 West 54th Street, New York, N.Y. It is engaged in interstate commerce in various parts of the United States in the business of manufacturing, buying, selling and distributing phonograph records and phonograph and record accessories. It has an agent and transacts business in the Eastern District of Pennsylvania, and has an office in said District and State at 1926 Arch Street, Philadelphia, Pa., which sells and distributes said products in eastern Pennsylvania, Delaware, southern New Jersey and eastern Maryland.
2. Defendant hired plaintiff as a clerk in its Philadelphia branch office on or about October, 1938. On or about June, 1939, plaintiff was given the title of "assistant manager".
3. During the six months' period next prior to May 6, 1940, plaintiff was paid a regular weekly salary of $25 and overtime compensation at the rate of one and one-half times his regular rate.During the period just prior to May 6, 1940, plaintiff was working approximately fourteen hours per week overtime and receiving an average weekly overtime compensation of approximately $12, making a total salary of approximately $37 a week.
4. On May 6, 1940, defendant through its agent, the manager of said branch office, informed plaintiff that he would be given the title of "assistant manager", the right to recommend the hiring and firing of subordinate employees, and his salary raised to $30 a week, but that he would thereafter receive no compensation for overtime work. Plaintiff was informed, however, that his duties after May 6, 1940, would be precisely the same as those performed by him prior to said date excepting, however, that since subordinate employees, but not plaintiff, received overtime compensation, plaintiff would be expected to get in earlier, work later, and generally do all possible overtime work in order that nonexempt employees would perform as little overtime work as possible.
6. Plaintiff's average work week after May 6, 1940, was approximately 65 hours; of these hours, not more than six in each week were occupied in performing executive duties and approximately 60 of said hours were occupied in performing work of the same nature as that performed by nonexompt employees. The average work week of the nonexempt and subordinate employees was approximately 50 hours per week.
7. On November 22, 1941, defendant dismissed plaintiff from its employ.
8. All and each of plaintiff's duties and activities hereinabove recited were in interstate commerce and directly affected the sale, distribution and flow of merchandise in interstate commerce.
9. During the period beginning May 6, 1940, and ending November 22, 1941, defendant employed plaintiff in interstate commerce as aforesaid for work weeks longer than the applicable maximum number of hours under Section 7 of the Fair Labor Standards Act, 29 U.S.C.A. § 207, and failed and refused to compensate him for such employment in excess of such applicable maximum in such work weeks.
10. The plaintiff was paid a weekly salary of $30 per week commencing May 6, 1940, until January 4, 1941, and a weekly salary of $35 from January 6, 1941, to November 22, 1941, when his employment was terminated.
11. Plaintiff worked the respective number of hours per week, from May 6, 1940, to November 22, 1941, including 2,062 3/4 hours overtime, as set forth in the schedule ...