The opinion of the court was delivered by: KALODNER
This is a suit for overtime compensation brought under the provisions of the fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., as amended, and tried before me without a jury.
The defendant, as indicated by its name, was engaged in the transportation business, and the plaintiff was employed by it as a rate clerk.
Only two factual questions are in dispute. First, the provisions of the contract under which the plaintiff was first employed; and, second, whether or not upon a date during the employment a new contract of employment was entered into upon different terms as to hours and wages.
The plaintiff's employment commenced on February 21, 1941, and ended September 16, 1941.
The plaintiff testified that he was originally engaged at a salary of $35 per week for a fifty-hour week, with overtime at the rate of time and a half for any hours worked in excess of 50 hours; and that he entered into this arrangement with Mr. Matthews, the District Manager of the defendant.
Matthews, however, testified upon this score that there was no agreement for payment for overtime, nor for a fifty-hour week; but the agreement was that the plaintiff would receive $35 a week no matter how many hours he worked.
It developed during the course of the testimony that until a change was made in the employment contract on May 26, 1941, the plaintiff regularly received his pay check in the amount of $35 (less deductions for Social Security Taxes and Philadelphia Income Tax) and never complained about the defendant's alleged failure to compensate him for overtime beyond fifty hours per week.
Notwithstanding, the plaintiff testified that he had each week turned in a report of the hours worked to his superior, and that that report showed that he worked well in excess of fifty hours each week.
It seems unlikely to me that the plaintiff would have remained silent if the verbal employment agreement had called for overtime beyond fifty hours per week, and the defendant (employer), beginning with the very first week, had consistently failed to pay such overtime. On this phase of the case, I credit the defendant's version of the agreement, and shall find that the employment was at the rate of $35 per week without any agreement for overtime compensation.
The other disputed phase of the case relates to the alleged new contract of hire of May 26, 1941. Matthews testified for the defendant that on May 26, 1941, he had a conversation with the plaintiff in which he advised him that henceforth the basis upon which the plaintiff was to be paid would be as follows: the plaintiff would receive 35( per hour for the first forty hours worked each week; 53( for each hour in excess of forty (i.e. time and a half for overtime), with a guaranteed minimum of $35 per week. Matthews testified that he arrived at these figures by ascertaining that up to that time, the plaintiff had worked about eighty hours per week; whereupon he so sub-divided the eighty hours and the straight pay and overtime pay that the result would be, on the one hand, that the plaintiff would still receive $35 a week, but that the provisions of the Fair Labor Standards Act, with respect to time and a half for all hours in excess of forty hours per week, would be complied with.
The plaintiff denied that Mr. Matthews had told him what has just been related, but the plaintiff did admit that he had initialed a letter received by Matthews from his superiors in the defendant ...