(dissenting).
1 am in accord with the majority in its decision on the employer’s appeal, but do not agree with it on the employee’s appeal. With respect to the latter appeal the majority opinion states that for the period in which the employee’s pay was computed on an hourly basis he worked overtime and *448“would therefore be entitled under the Act to be paid for such overtime, unless it were shown that there was a new and valid contract between the parties.” This statement is not strictly accurate, for, under the trial court’s finding that the employee was not exempt from coverage of the Act, the employee was entitled to be paid for overtime whether he was working under the new or old contract. What the majority really means is that if there was a new and valid contract for this period, then the employee has already been paid for his overtime work at the required rate of time and a half. I think the majority is in error when it says there was “no evidence” that there was a new and valid contract between the parties.
In April 1943 the employee had been working for the employer for approximately eight months at a monthly salary of $480. Although he usually worked forty-eight hours per week, no overtime pay was computed in his salary, because the employer considered him an administrative employee and exempt from the overtime pay provision of the Act. The employee at that time was also of the same opinion, for he made no claim to be entitled to overtime pay until late in the year 1944. Prior to April 26, 1943, the employer decided to change the employee’s pay from a monthly basis to an hourly basis, and tendered the employee a “change of rate slip.” This slip provided for a change from a rate of $480 per month to a rate of $2.14 per hour. The employee was told that the payroll department desired the change but it would make no difference to him as he would continue to get the same amount of pay. He protested against the change, saying it might affect his vacation, sick leave or seniority rights, but nevertheless he signed the slip. Thereafter, for the period in question, the employee was paid at the hourly rate with time and a half for overtime, and the net result was that he received as wages on an hourly basis, with overtime computed, approximately the same amount he had previously received on the monthly salary basis.
As I see the situation, the testimony presented a question of fact for the trial judge whether the tender and acceptance of the change of rate slip constituted a new and valid agreement between the parties or was a mere artifice designed for the purpose of computing the regular rate in an unrealistic manner for the purpose of evading the Act. I see nothing in the record which compels this court to hold the agreement invalid as a matter of law. The rate of $2.14 per hour was not plainly unrealistic. It was adopted in order that the regular rate plus overtime pay would give the employee the same amount he had theretofore received on a monthly basis. This was in accordance with the employer’s promise that the employee would receive the same amount under the new agreement as under the old. At that time neither party considered that the employee was entitled to overtime pay for the previous period. There is no evidence of fraud or bad faith on the employer’s part. The trial court, in view of all the circumstances of the case, was not compelled to accept the employee’s apparent claim that he signed the agreement under duress.
This court accepts the trial court’s finding of fact that the employee was within coverage of the Act. I think this court should also accept the trial court’s finding of fact, not expressed but implicit in its general finding, that the change of rate slip constituted a new and valid agreement and that during its existence the employee was paid for overtime.1
Cf. Walling v. Halliburton Oil Well Cementing Company, 331 U.S. 17, 67 S. Ct. 1056; Shepler v. Crucible Fuel Co., 3 Cir., 140 F.2d 371; Bergschneider v. Peabody Coal Co., 7 Cir., 142 F.2d 784; Walling v. General Industries Company, 6 Cir., 155 F.2d 711, affirmed 330 U.S. 545, 67 S.Ct. 883; Lassiter v. Guy F. Atkinson Co., 9 Cir., 162 F.2d 774.