The denial of a new trial was error.
DECIDED JUNE 13, 1945.
Gladys E. Bollinger sued Claude S. Bennett Incorporated for wages alleged to be due her. Her petition alleged that on October 1, 1943, she and the defendant made a verbal contract stipulating that she was employed by the defendant as an extra saleswoman
during October, November, and December, 1943, to work on such days as suited her convenience, for which she was to be paid $6 a day for each day that she worked, contingent upon her making an average of $150 in sales for each day worked, and that she was to receive also a commission of 5 per cent. upon all sales made by her in excess of $150 on each day that she worked; that she worked 51 days and made total sales amounting to $15,036.45, of which, $7650 was the amount of sales which entitled her to receive her salary of $6 a day, and of which, $7386.45 was the amount of sales entitling her to receive the 5 per cent. commission; that under the terms of her contract she earned $306 as salary and $369.32 as commissions, making a total of $675.32 earned by her; that the defendant has paid her $306 as her salary and $25 on account of her commissions; and she is due the further sum of $344.32, together with 7 per cent. interest thereon, which the defendant has refused to pay, on her demand. The defendant entered a general denial, alleging that it owed the plaintiff nothing. After the introduction of evidence by both parties, the judge, sitting without a jury, rendered a judgment in favor of the plaintiff for the amount sued for; the defendant's motion for a new trial, based upon the general grounds only, was denied; and that judgment is assigned as error.
Upon the trial, the evidence relating to the terms of the oral contract between the parties was in sharp conflict, but the judge, of course, had the authority to resolve that issue of fact in favor of the plaintiff. However, the defendant introduced in evidence section 5 of the 1942 act of Congress, known as the stabilization of wages and salaries act, which authorized the President of the United States to promulgate regulations to stabilize salaries and wages. Said section provides: "No employer shall pay and no employee shall receive wages or salaries in contravention of the regulations promulgated by the President under this act." The defendant also introduced in evidence title 2 of Executive Order No. 9250, passed in pursuance of the above-quoted section. Title 2 of said order reads: "No increases in wage rates granted as the result of voluntary agreements, collective bargaining, conciliation, arbitration,
or otherwise, and no decreases in wage rates shall be authorized unless notice of such increases or decreases shall have been filed with the National War Labor Board and unless the National War Labor Board has approved such increases or decreases." The undisputed evidence in the case showed that the wages of the plaintiff had been greatly increased, and that no notice of such increase had been filed with the National War Labor Board.
Counsel for the plaintiff contend, however, that the above-quoted executive order is not applicable to this case, in that the plaintiff was only a temporary employee, and the evidence failed to show that the employees of the defendant were organized, or that she was a member of an organization, if any existed. We can not agree with this contention. Section 5 of the stabilization act provides that "no employer shall pay and no
employee shall receive wages or salaries in contravention of the regulations promulgated by the President under this act;" (italics ours) and paragraph 4 of Interpretative Bulletin No. 3 under General Order No. 31 shows that the above-quoted provision of section 5 applies to temporary employees hired "during special rush periods such as the Christmas rush." And it is immaterial whether the employees of the defendant were organized or whether the plaintiff was a member of the organization. Title 2 of Executive Order No. 9250 says: "No increases in wage rates granted as the result of voluntary agreements, collective bargaining, conciliation, arbitration, or otherwise . . shall be authorized unless notice of such increases . . shall have been filed with the National Labor Board and unless the National Labor Board has approved such increases." (Italics ours.) In this case the undisputed evidence showed that the increase in the plaintiff's wages was granted as the result of a voluntary agreement between her and the defendant.
Counsel for the plaintiff further contend that under Interpretative Bulletin No. 4, issued in July, 1944 (which holds that where a salesman had been compensated on the basis of a percentage on the amount of his sales, an increase of his earnings resulting from a fluctuation in the volume of his sales was not subject to the approval of the War Labor Board), the plaintiff's increase was not so subject. That ruling is not here applicable. The undisputed
evidence showed that the plaintiff, at the time she received her increase, and before that period, was employed on a straight salary basis of $6 a day, and was not being compensated "on the basis of a percentage on the amount of her sales." Under the above-stated facts and the law pertinent thereto, the plaintiff's increase was not authorized; and, having been paid the full amount due her on the basis of her $6 a day salary, she was not entitled to recover any further amount.
In our opinion, the evidence demanded a verdict for the defendant, and the denial of a new trial was error.
Judgment reversed. MacIntyre and Gardner, JJ., concur.