hour. Thus plaintiffs reclassify themselves simply because as officers and directors and stockholders, they joined the Brittons in waiving their salaries until further action by the board. Counsel for plaintiffs say that because plaintiffs did not get paid $ 55 per week, they couldn't be executives. Therefore, they must be entitled to 75 cents per hour and time and a half for overtime. Such a conclusion is naive and unrealistic when applied to the factual situation in this case.
Plaintiffs' counsel have cited many decisions which set forth the requirements for exemption under the statute because either executive under Regulation 541.1, or administrative under Regulation 541.2. Sun Publishing Co. v. Walling, 6 Cir., 140 F.2d 445; also in the same volume, Walling v. Yeakley, 140 F.2d 830, a decision from the Tenth Circuit; and Helliwell v. Haberman, 140 F.2d 833, a per curiam decision from the Second Circuit.
The difficulty with plaintiffs' contention in this regard is, however, that it is impossible under the evidence to pinpoint any time or date when plaintiffs became transformed from an owner status to that of an employee entitled to wages under the Act. Plaintiffs say if the date isn't February 1, 1954, then possibly it is April 26, 1954, when Mr. James went to work, or as late as September 24, 1954, when plaintiffs were not re-elected vice presidents. At no point in the evidence, however, is it possible to find that plaintiffs changed themselves from top level corporate executives to wage earners. The evidence is not too clear as to exactly why plaintiffs continued reporting at the executive offices as long as they did. It is noticed with regard to plaintiff Oboth that his counsel in his brief says his reason for continuing to work was his past friendship with Mr. Britton. From Mr. Oboth's testimony it appears probable that the main reason he continued was in the hope and expectation that he would be paid his back salary. It is fair to say that both plaintiffs let the situation drift along from month to month in the expectation that a crisis would be reached and a showdown take place. Such an event did occur and plaintiffs ended their performance of duties for the defendant corporation.
In deciding this case, this court is not unmindful that persons in a similar position to plaintiffs might, under certain circumstances, sever their association with an ownership-officer-director status in a corporation and thereafter become employees, as that term is used in the Act and in common language. However, this court does hold in this case, under the facts presented, that plaintiffs have not shown by a fair preponderance of the evidence that they are entitled to invoke the performance of the Fair Labor Standards Act. This court does not propose to be bound by a decision of an investigator of the Wage and Hour Division of the United States Department of Labor, based on a cursory review of the plaintiffs' background and their association with the partnership and the corporation.
An order will be entered upon all the evidence dismissing the action. This opinion will be regarded as comprising the findings of fact and conclusions of law pursuant to the provisions of Rule 52(a), 28 U.S.C.A.
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