Opposition — Figueredo v. South Florida Beverage Corp.

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Table of Contents.

Opinions below 1

Statute and regulations involved 2

Statement of the case 3

Argument 8

I. The writ should be denied because it was not

timely filed 8

II. The writ should be denied because there is no

substantial federal question warranting review ll

Conclusion 17

Appendix A: Corporate affiliates of South Florida

Beverage Corporation 19

Table of Authorities Cited.

Cases.

American Railway Express Co. v. Levee, 263 U.S. 19

(1923) 8

Ansin v. Thurston, 10] So.2d 808 (Fla. 1958) 8, 10

Bay Ridge Operating Co. v. Aaron, 334 U.S. 446 (1948) 7, 11, 13

Brennan v. Elmer's Disposal Service, Inc., 510 F.2d

84 (9th Cir. 1975) ln

Brooklyn Savings Bank v. O’Neil, 324 U.S. 697(1945) 12n

Harris v. Pennsylvania R.R., 361 U.S. 15 (1959) 12n

Lake v. Lake, 103 So.2d 639 (Fla. 1958) 4

Nielsen v. City of Sarasota, 117 So.2d 731 (Fla. 1960) 10

Norfolk & Suburban Turnpike Co. v. Virginia, 225

U.S. 264 (1912) 10n

ii TABLE OF AUTHORITIES CITED.

Norris v. Alabama, 294 U.S. 587 (1935) lan

Perma Life Muf‘lers, Inc. v. International Parts Corp..,

392 U.S. 134 (1968) 12n

Shaw v. Shaw, 334 So.2d 13 (Fla. 1976) 9

Walling v. Youngerman-Reynolds Hardwood Co., 325

U.S. 419 (1945) 7, 11,13

Westerman v. Shell’s City, Inc., 265 So.2d 43 (Fla.

1972) 9

Wilkerson v. McCarthy, 336 U.S. 53 (1949) 12n

Williams v. Florida, 399 U.S. 78 (1970) 8

Yadav v. Coleman Oldsmobile, Inc., 538 F.2d 1206

(5th Cir. 1976) 16

STATUTES AND CONSTITUTIONAL Provisions.

28 U.S.C. § 1257 10

28 U.S.C. § 2101 (c) 8

Fair Labor Standards Act, 29 U.S.C.

§§ 201 et seq. 2, 4, 5, lln, 13

Section 7(a) (1) 2,4,13

Section 7 (e) (5) 5

Section 7 (e) (6) 5

Section 7 (e) (7) 5

Section 7 (f) lln, 12n

Florida Constitution, Article V

§3 8

§ 3(b) 4

§ 3(b)(1) 9

§ 3(b) (2) 9

§ 3(b)(3) 9, 10

TABLE OF AUTHORITIES CITED. iii

MISCELLANEOUS.

29 C.F.R.

§ 778.112 2,5, 7, 12, 14 et seq

§ 778.114 2, 4,5, 7, 14 et seq

§ 778.405 12n

Supreme Court

Rule 17.1(b) ll

Rule 17.1(c) ll

Wage-Hour Opinion Letter No. 950 (Feb. 12, 1969) 16

No . 81-2366.

In the

Supreme Court of the United States.

Ocroser Term, 1981.

EFRAIN FIGUEREDO, er aAt.,

PETITIONERS,

SOUTH FLORIDA BEVERAGE CORPORATION,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT.

Brief in Opposition to Petition for a Writ of Certiorari.

Opinions Below.

The order of the trial court (the Circuit Court for Dade

County) was entered on October 10, 1980 (Pet. App. 24-26).

The decision of the District Court of Appeal of Florida, Third

District, was filed on December 22, 1981 and is reported at

409 So.2d 490 (Pet. App. 12-22). A motion for rehearing was

denied on February 9, 1982 (Pet. App. 23). The Florida Su-

preme Court denied a petition for certiorari on May 28, 1982

(Pet. App. 27).

2

Statute and Regulations Involved.

Section 7(a)(1) of the Fair Labor Standards Act, 29 U.S.C.

§ 207(a)(1), provides as follows:

Except as otherwise provided in this section, no

employer shall employ any of his employees who in any

workweek is engaged in commerce or in the production of

goods for commerce, or is employed in an enterprise en-

gaged in commerce or in the production of goods for com-

merce, for a workweek longer than forty hours uniess

such employee receives compensation for his employment

in excess of the hours above specified at a rate not less

than one and one-half times the regular rate at which he

is employed.

29 C.F.R. § 778.112 provides:

Day rates and job rates. If the employee is paid a flat

sum for a day’s work or for doing a particular job, with-

out regard to the number of hours worked in the day or at

the job, and if he receives no other form of compensation

for services, his regular rate is determined by totaling all

the sums received at such day rates or job rates in the

workweek and dividing by the total hours actually

worked. He is then entitled to extra half-time pay at this

rate for all hours worked in excess of 40 in the workweek.

29 C.F.R. § 778.114(a) provides:

Fixed salary for fluctuating hours. (a) An employee em-

ployed on a salary basis may have hours of work which

3

fluctuate from week to week and the salary may be paid

him pursuant to an understanding with his employer that

he will receive such fixed amount as straight time pay for

whatever hours he is called upon to work in a workweek,

whether few or many. Where there is a clear mutual

understanding of the parties that the fixed salary is com-

pensation (apart from overtime premiums) for the hours

worked each workweek, whatever their number, rather

than for working 40 hours or some other fixed weekly work

period, such a salary arrangement is permitted by the Act

if the amount of the salary is sufficient to provide compen-

sation to the employee at a rate not less than the applicable

minimum wage rate for every hour worked in those work-

weeks in which the number of hours he works is greatest,

and if he receives extra compensation, in addition to such

salary, for all overtime hours worked at a rate not less than

one half his regular rate of pay. Since the salary in such a

situation is intended to compensate the employee at

straight time rates for whatever hours are worked in the

workweek, the regular rate of the employee will vary from

week to week and is determined by dividing the number of

hours worked in the workweek into the amount of the

salary to obtain the applicable hourly rate for the week.

Payment for overtime hours at one-half such rate in addi-

tion to the salary satisfies the overtime pay requirement

because such hours have already been compensated at the

straight time regular rate, under the salary arrangement.

Statement of the Case.

This is an action by 63 route drivers against their employer,

South Florida Beverage Corporation (the “Company”),' for

‘South Floride Beverage Corporation is a wholly-owned subsidiary of

Holiday General Corporation, which is in turn a wholly-owned subsidiary

4

overtime compensation payments allegedly required by the

Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”).

As delivery truck drivers, petitioners spent virtually their

entire working time servicing routes away from the

Company's premises and without any direct supervision or

control (Record Appendix in District Court of Appeal (“R.”)

57-58, 217, 230-232). Their actual work hours fluctuated

from day to day and week to week, depending on such factors

as traffic and the speed and ability of the driver (Pet. App. 15;

R. 52, 57-58, 216-217, 230-232, 561-580). The drivers some-

times worked more, and sometimes less, than eight hours per

day and forty hours per week, respectively. Id.

In 1975, the drivers selected as their exclusive representative

for collective bargaining purposes Local 8430 of the United

Steelworkers of America (the “union”) (Pet. App. 32; R. 174).

As a result of collective bargaining, the parties’ 1975-1978

agreement provided that the drivers would receive overtime

pay computed “in accordance with the procedure outlined in

Interpretive Bulletin Section 778.114 of the Wage and Hour

Administrator, entitled ‘Fixed Salary for Fluctuating Hours’”

(Pet. App. 14; R. 391, 398). At the same time, the parties

entered into a sideletter providing that:

For the first six weeks after the contract is signed, the

Company may schedule employees to work in excess of 50

hours in a given work week. Thereafter, under normal

circumstances, the Company will not schedule an em-

ployee to work a regular work week in excess of fifty (50)

hours.

of General Cinema Corporation. Aifiliated corporations (which are directly

or indirectly owned by General Cinema Corporation) are set forth in Appen-

dix A.

5

(R. 419, 421; Plaintiffs’ Exhibit 1 (emphasis added).) Shortly

thereafter, the union requested and the Company agreed to

treat Saturday work separately in determining weekly overtime

pay, as is permitted by 29 U.S.C. § 207(e)(6) (premium Satur-

day pay not included in “regular rate”). See Pet. App. 15 n.5.

During the term of the 1975-1978 collective bargaining

agreement, the Company paid the drivers a guaranteed, fixed

sum of one-fifth of their designated salary for each day that

they performed some work, regardless of the number of hours

worked (Pet. App. 15; R. 235-236, 566, 569). In accordance

with this practice, a driver was paid a full day’s pay even if he

worked less than eight hours that day (R. 187-189). If a driver

worked more than forty hours in a particular week the Com-

pany, in accordance with guidelines published by the Wage

and Hour Division of the U.S. Department of Labor (R. 383,

452), computed the driver's “regular rate” for that week by

dividing the designated weekly salary (excluding any premium

or non-statutory overtime payments as provided in §§ 7(e)(5)

and 7(e)(7)) by the hours worked during that week (Pet.

App. 15). The Company then paid such drivers overtime

compensation, in addition to the compensation already paid

for that week, at one-half their “regular rate” for each hour

worked over forty (Pet. App. 15). The reason for this method

of computing overtime was that under a “daily rate” arrange-

ment, the total “daily rate” payments which the drivers re-

ceived compensated them at “straight time” rates for whatever

hours they worked that week. Therefore, in order to provide

the employees with one and one-half times their “regular

rate,” an additional payment for overtime hours at one-half

the “regular rate” for that week was necessary (Pet. App. 15,

17, 18 n.7; 29 C.F.R. § 778.112; cf. id. § 778.114).

The Company consistently followed these pay practices dur-

ing the term of the 1975-1978 agreement (R. 236, 241-245,

299-304, 317, 319, 335-336, 385-386, 569). At no time did

petitioners — several of whom were officers of the union

(R. 31, 39, 55, 182) — or any other drivers file any grievance

or even suggest that the Company was violating the agreement

(R. 176-177, 216-218, 250-251, 408, 431, 584). Nor did the

union. Id.

In the 1978 collective bargaining negotiations (in which sev-

eral of the petitioners participated), the union proposed a

change to an hourly method of pay, but this proposal was re-

jected (R. 76, 81-86, 199, 213-215, 575-579). As a compro-

mise, the parties agreed not to change the underlying “daily

rate” method of pay, but agreed to increase overtime compen-

sation to an additional payment at the employee's “straight

time” rate for that week (id.; Pet. App. 15). Thus, the Com-

pany agreed as a contractual matter to a higher overtime

premium than was required by the FLSA, but less than peti-

tioners now claim to be due (Pet. App. 15).

Under the 1978 agreement, the Company continued to pay

employees on a “daily rate” basis without any objection that

this method of payment violated the 1978 agreement. Al-

though one driver apparently complained to the Department

of Labor concerning the Company’s method of overtime pay

(Pet. App. 44), the Department instituted no proceedings and

made no suggestion that the Company was in violation of the

FLSA. Petitioners thereafter brought this action in the Cir-

cuit Court for Dade County, Florida.

After a non-jury trial, the Circuit Court issued an order,

without opinion, concluding that the Company had not com-

puted overtime pay in accordance with the requirements of

the FLSA (Pet. App. 24-26). The trial court found that the

Company had paid overtime on the basis “that daily wages

equal to one-fifth of the weekly wage stated in the contract

was to cover all of the hours which [the employees] were

required to work during the day” (Pet. App. 24). However,

relying “almost entirely upon a single clause” in the governing

7

collective bargaining agreement (Pet. App. 13-14), the trial

court ruled that the Company was required to pay overtime on

the basis that the employees received fixed pay for fixed hours

On appeal, the District Court of Appeal of Florida, Third

District, ruled that the Company had not violated the FLSA.

Relying on this Ccurt’s decisions in Walling v. Youngerman-

Reynolds Hardwood Co., 325 U.S. 419 (1945), Bay Ridge

Operating Co. v. Aaron, 334 U.S. 446 (1948), and progeny,

the District Court of Appeal ruled that:

the polestar in the determination of the “regular rate”

question is the reality of the particular situation, that is,

what hours and methods of pay were adopted “in actual

fact” by the employer and employee.

(Pet. App. 14.) On the basis of the “actual facts,” including

the contractual provision referring to § 778.114, the Com-

pany’s consistent and unchallenged practice over the term of

two collective bargaining agreements, and the bargaining his-

tory of the second of those agreements (Pet. App. 15-16,

21-22), the District Court of Appeal found that “everyone,

without issue, dispute, or complaint, treated the agreement”

as one under which “a driver received a guaranteed payment

of one-fifth of his designated weekly salary for each weekday

he reported for work no matter how many hours he worked on

that particular day” (Pet. App. 15, 22). Since the employees

were “paid on a flat-sum-per-day-regardless-of-hours- worked

basis” (Pet. App. 14), the court concluded that the Company's

method of computing overtime pay was precisely the one

authorized by the applicable regulations of the U.S. Depart-

ment of Labor, 29 C.F.R. § 778.112; cf. id. § 778.114. See

Pet. App. 15, 19.

8

Argument.

I. THe Warr SHoutp se Deniep Because It was Nor

Trey Fizep.

The petition for certiorari should be denied because it was

not filed in timely fashion. The District Court of Appeal

rendered final judgment on December 22, 1981 and denied

rehearing on February 9, 1982. Any petition for certiorari

therefore was required to be filed on or before May 10, 1982.

28 U.S.C. § 2101(c). In fact, the petition was not filed until

June 25, 1982.

Petitioners contend, in reliance on American Railway Ex-

press Co. v. Levee, 263 U.S. 19 (1923), that “the time for filing

here is computed from the date the Florida Supreme Court

refuses to accept its discretionary jurisdiction” (Pet. 2). Peti-

tioner’s reliance on Levee is misplaced because in this case,

unlike Levee, the state Supreme Court did not have jurisdic-

tion, discretionary or otherwise, to review the judgment in

question.

On July 1, 1957, the Florida state Constitution was arnend-

ed to establish the district courts of appeal as “courts of final,

appellate jurisdiction,” Lake v. Lake, 103 So.2d 639, 642 (Fla.

1958) (emphasis in original). Accord, Ansin v. Thurston, 101

So.2d 808, 810 (Fla. 1958), cited with approval, Williams v.

Florida, 399 U.S. 78, 80 n.5 (1970).* At the same time, the

jurisdiction of the Florida Supreme Court was sharply cur-

tailed. Florida Constitution, Article V, § 3. That court is re-

quired to hear appeals in cases “imposing the death penalty,”

“declaring invalid a state statute or a provision of the state

constitution,” or involving certain other specific situations not

* The petitioner in Williams was represented by the same attorney who

represents petitioners herein.

applicable here. Fla. Const., Art. V, § 3(b)(1),(2). In addi-

tion, the Florida Supreme Court may, in its discretion, review

decisions in a narrowly-circumscribed classification of cases.

Id., Art. V, § 3(b). The principal provision concerning the

Florida Supreme Court's discretionary jurisdiction — and the

sole ground invoked by petitioners in their brief to the Florida

Supreme Court — confers the discretion to review a decision of

a district court of appeal that “expressly and directly conflicts”

with a decision of another district court of appeal or of the state

Supreme Court “on the same question of law.” Id., Art. V,

§ 3(b)(3).°

This case did not come within that category. There was no

decision of the Florida Supreme Court, or of any district court

of appeal, which “expressly and directly” conflicted with the

decision in this case “on the same point of law.” Both of the

cases relied upon by petitioners in the Florida Supreme Court

(see Pet. 6) involved factual and legal issues which were entire-

ly different from those involved here. Westerman v. Shell's

City, Inc., 265 So.2d 43 (Fla. 1972), involved a breach of an

oral contract to sell a liquor license. Shaw v. Shaw, 334 So.2d

13 (Fla. 1976), involved a trial court’s award of alimony in

connection with a divorce decree. Neither case involved the

Fair Labor Standards Act or interpretation of collective bar-

gaining agreements; indeed, neither involved labor or employ-

ment-related matters of any kind.‘

*Prior to 1968, the Florida Supreme Court had the discretion to review

decisions of the district courts of appeal that were “in direct conflict” with

such other decisions. In 1968, the Florida Constitution was amended to nar-

row this jurisdiction to its present scope.

‘Petitioners contended in the Florida Supreme Court that the decision

below “expressly and directly” conflicted with the cited cases because (in

apart from the merits of such a contention, the Florida Supreme Court has

made clear that Article V, § 3(b)(3) does not confer jurisdiction to review the

particular application of legal principles to unique factual situations, but

10

Although the Florida Bar has repeatedly been warned that

Article V, § 3(b)(3) does not convert the Florida Supreme

Court into a “‘court of selected errors,’” Nielsen v. City of

Sarasota, supra, 117 So.2d at 734, petitioners sought to obtain

two appeals on the merits in the Florida state courts. As the

Florida Supreme Court has repeatedly held, see, e.g., Ansin v.

Thurston, supra, it lacks jurisdiction to provide such a second

appeal. The District Court of Appeal therefore was the

highest court of Florida in which a decision could be had, 28

U.S.C. § 1257, and any petition for certiorari was due within

ninety days of that court’s denial of rehearing.*

rather to review “the announcement of a rule of law” which conflicts with

established precedent or to review a decision which reaches a conflicting con-

clusion in a case involving substantially the same controlling facts as were in-

volved in the allegedly conflicting precedents. Nielsen v. City of Sarasota,

117 So.2d 731, 734 (Fla. 1980) (emphasis in original).

*In its Order, the Florida Supreme Court stated that it had “determined

that it should decline to accept jurisdiction” (Pet. App. 27), but did not ex-

pressly state the reason for this determination. In these circumstances, this

Court's announcement in Norfolk & Suburban Turnpike Co. v. Virginia, 225

U.S. 264, 269 (1912), is applicable:

we now state that, from and after the opening of the next term of this

court, where a writ of error is prosecuted to an alleged judgment or a

decree of a court of last resort of a State declining to allow a writ of er-

ror to or an appeal from a lower state court, unless it plainly appears,

on the face of the record, by an affirmance in express terms of the judg-

ment or decree sought to be reviewed, that the refusal of the court to

allow an appeal or writ of error was the exercise by it of jurisdiction to

review the case upon the merits, we shall consider ourselves con-

strained to apply the rule announced in the Crovo Case, and shall

therefore, by not departing from the face of the record, solve against

jurisdiction the ambiguity created by the form in which the state court

has expressed its action.

ll

Il. THe Warr SHoutp se Deniep Because Tuene ts No

SUBSTANTIAL FEepeRAL QuesTION WARRANTING Review.

This case presents no issue which warrants the granting of

certiorari. There is no constitutional question. Since the case

arose in the Florida state court system, this case obviously in-

volves no conflict among the circuits. There is no conflict

alleged between the decision below and any decision of a fed-

eral court of appeals or state court of last resort. Cf. Supreme

Court Rule 17.1(b). The petitioners do not contend that the

decision below conflicts with any decisions of this Court. Su-

preme Court Rule 17.1(c). Indeed, the petitioners do not take

issue with the reliance by the District Court of Appeal (Pet.

App. 14-15) upon this Court’s decisions in Walling v. Younger-

man-Reynolds Hardwood Co., supra, Bay Ridge Operating

Co. v. Aaron, supra, and progeny.

The District Court of Appeal’s application of the FLSA like-

wise presents no “important question of federal law.” Supreme

Court Rule 17.1(c). The decision below involves no question

of general statutory interpretation, but only the application of

settled principles to the particular facts of this case. The deci-

sion below thus affects only the parties thereto, and has no

general legal significance.

* Brennan v. Elmer's Disposal Service, Inc., 510 F.2d 84 (9th Cir. 1975),

which petitioners claim is “[t]}he closest case factually on point,” is neither

factually similar nor legally apposite. That case involved a so-called “Belo”-

type plan in which an employer pays its employees a weekly salary in a fixed

amount which includes overtime pay. 29 U.S.C. § 207(f) establishes strict

ly guarantee of pay which covers no more than 60 hours. In Elmer's Disposal

Service, these statutory requirements were not met.

This case, by contrast, does not involve a “Belo” contract or § 207(f). The

rates of pay established by the parties’ collective bargaining agreements did

not include overtime, but rather provided for additional overtime pay, com-

puted on a “fluctuating hours” basis.

12

The “Questions Presented” by petitioners underscore the

lack of a substantial federal question (Pet. 1). The first “Ques-

tion Presented” concerns the scope of review of a Florida ap-

pellate court over a Florida trial court — an issue of state law.’

The second “Question Presented” — whether the “daily

rate” method of pay is “appropriate” in “the absence of an ex-

plicit agreement” when “the daily schedule is controlled by

the employer” — presents no substantial issue under estab-

lished federal law. The Department of Labor's regulation

concerning day rates, 29 C.F.R. § 778.112, upon which the

District Court of Appeal specifically relied (Pet. App. 17),

does not require an “explicit agreement,” and is applicable

regardless of whether “the daily schedule is controlled by the

employer.”* There is no sound reason — and none is offered

by petitioners — for this Court to require the Department

"None of the decisions of this Court cited by petitioners (Pet. 7) are

remotely similar to this case. Brooklyn Savings Bank v. O’Neil, 324 U.S. 697

(1945), involved the legal effect of an employee's release of FLSA claims. The

Court ruled that the legal effect depended on whether the release was intend-

ed as a full settlement of the employee's claims or only a waiver of liquidated

damages. Id. at 703. In so ruling, the Court held that although the state

courts had made no finding on that issue, the Court was not precluded from

reviewing the evidence.

The remaining decisions cited bear even less resemblance to this case. Nor-

ris v. Alabama, 294 U.S. 587 (1935), involved the exclusion of blacks from a

grand jury which indicted a black for rape. Wilkerson v. McCarthy, 336

U.S. 53 (1949), and Harris v. Pennsyloenie R.R.., 361 U.S. 15 (1959), in-

volved the special status of jury verdicts for employees under the Federal

Employers Liability Act. Perma Life Mufflers, Inc. v. International Parts

Corp., 392 U.S. 134 (1968), involved a federal court of appeals ruling that a

corporation was barred from bringing an antitrust action against an af-

filiated corporation under the in pari delicto theory.

* Petitioners’ reference to 29 C.F.R. § 778.405 is completely misplaced.

That regulation concerns “Belo” contracts under Section 7(f), see note 6,

supra, and has nothing to do with “daily rate” or “fluctuating workweek”

arrangements.

13

of Labor to engraft these additional requirements onto its

regulation.°

In any event, the District Court of Appeal properly conclud-

ed that the Company's “daily rate” method of pay was lawful

in this case.

Under the FLSA, employees must be paid for hours worked

in excess of forty per week at one and one-half times their

“regular rate.” 29 U.S.C. § 207(a)(1). As this Court has

repeatedly held, an employee's “regular rate” within the

meaning of the FLSA “must be drawn from what happens

under the employment contract” between the employee and

his employer. Bay Ridge Operating Co. v. Aaron, supra, 334

U.S. at 464; see Walling v. Youngerman-Reynolds Hardwood

Co., supra. It is undisputed as to “what happened” in this

case: both collective bargaining agreements and the sideletter

contemplated fixed pay for fluctuating hours; for over three

years, over the term of these two agreements, “employees

were, in fact, paid on a flat-sum-per-day-regardless-of-hours-

worked basis” (Pet. App. 14), and this practice was “accepted

by the drivers and their union” without any complaint that

this practice violated those agreements (Pet. App. 13; R. 176-

177, 216-218, 584). In these circumstances, the District Court

of Appeal properly concluded that the parties in fact agreed

to a fixed rate for fluctuating hours and not a fixed rate for

fixed hours. The court’s conclusion was supported by (among

other things) the following undisputed facts:

* Petitioners’ contention proceeds trom two erroneous factual predicates.

First, the Company did not have daily control of the work schedule or con-

trol over the actual hours worked by employees. Second, there was over-

whelming evidence to support the conclusion of the District Court of Appeal

that the parties “in actual fact” adopted the “flat

of-hours-worked basis” by which the Company computed overtime.

14

1. The 1975-1978 collective bargaining agreement

provided that overtime would be paid in accordance with

29 C.F.R. § 778.114, which contemplates fixed pay for

fluctuating work hours (R. 391, 398).

As the District Court of Appeal noted (Pet. App. 21), if

the parties had intended to provide fixed pay for fixed

hours, they never would have included this provision in

the contract.

2. At the time that the 1975-1978 agreement was

negotiated, the parties confirmed in a letter of under-

standing that the “regular work week” would not exceed

fifty hours under normal circumstances (R. 419, 421;

Plaintiffs’ Exhibit 1).

Once again, if the parties had intended to provide fixed

pay for a fixed workweek of 40 hours, they never would

have agreed to such a sideletter.

3. At all times, the drivers’ work hours in fact fluctu-

ated from day to day and week to week, sometimes more

and sometimes less than 8 hours per day or 40 hours per

week, respectively (R. 52, 57-58, 216-217, 230-232,

561-580).

4. At all relevant times the Company paid the drivers

a fixed sum for each day that they worked, even if they

worked less than eight hours in the day (R. 235-236, 566,

569). One of the drivers who is a petitioner herein speci-

fically admitted that such was the case (R. 187-189).

The Company's payment of the full daily rate for days

on which an employee worked less than eight hours is par-

ticularly significant, because it is inconceivable that the

Company would have paid a full day’s pay for a “short”

workday unless it was contractually obliged to do so.'®

‘© Having accepted for several years the benefit of receiving a full day's pay

for “short” workdays, it is completely inconsistent for petitioners to claim

15

5. The Company consistently followed its practice for

over three years, during the term of two successive collec-

tive bargaining agreements (R. 236, 241-245, 299-304,

317, 319, 335-336, 385-386, 569).

6. During the terms of those two agreements, neither

the petitioners — several of whom were officers of the

union (R. 31, 39, 55, 182) — nor the union filed any

grievance or even suggested that the Company was vio-

lating the collective bargaining agreements (R. 176-177,

216-218, 250-251, 408, 431, 584).

The District Court of Appeal was warranted in con-

cluding that no grievance or complaint was raised

because “everyone” recognized that the Company’s prac-

tice conformed to the parties’ actual agreement or under-

standing."

7. In the 1978 collective bargaining negotiations (in

which several of the drivers participated), the union pro-

posed a change to an hourly method of pay but this pro-

posal was rejected (R. 82-86, 199, 213-215, 575-579).

This bargaining history shows that the agreements did

not in fact establish an hourly method of pay.

8. In the 1978 negotiations, the parties agreed to in-

crease overtime compensation from the additional half-

time required by the FLSA to an additional straight-time.

Id.

This bargaining history was extremely significant to

the court, because if the 1975 agreement had established

a fixed rate of pay, and a requirement of an additional

that there ws no such arrangement and that they should in addition have

received overtime pay computed on a fixed hours basis instead of a fluc-

tuating hours basis.

"In short, the drivers’ failure to object to the Company's method of pay-

ment was not merely a waiver of rights but a recognition that no contractual

right’ were being violated.

16

time and one-half for overtime hours, the union never

would have sought (much less agreed to) such a change

(Pet. App. 22).

Against this evidence, petitioners place virtually their entire

reliance on the provision of the 1975-1978 agreement that “the

regular workweek” would be forty hours (Pet. 3). However,

in light of the contract’s reference to § 778.114, the letter of

understanding referring to a workweek of fifty hours or more,

and the parties’ longstanding and uncontested practice, the

District Court of Appeal properly concluded that this single

provision was not dispositive:

Viewed in this light, the forty-hour provision simply does

not mean — or even say — what the [trial] court held it

did. Indeed, it does not even speak to the real issue in the

case — the “regular rate” of the drivers. Instead, it pro-

vides only that the “regular work week” is forty hours

(Pet. App. 21; emphasis in original.)

In these circumstances, the District Court of Appeal prop-

erly concluded that the parties’ agreement was one for a daily

rate method of payment. It therefore followed that the man-

ner in which the Company computed overtime was proper. 29

C.F.R. § 778.112; Yadav v. Coleman Oldsmobile, Inc., 538

F.2d 1206, 1207-1208 (5th Cir. 1976); Wage-Hour Opinion

Letter No. 950 (Feb. 12, 1969).

17

Conclusion.

For the foregoing reasons, the petition for a writ of certi-

orari should be denied.

Respectfully submitted,

Of Counsel: JOHN H. MASON,

NELSON G. ROSS, ROPES & GRAY,

DAVID M. MANDEL, 225 Franklin Street,

ROPES & GRAY, Boston, Massachusetts 02110.

225 Franklin Street, (617) 423-6100

Boston, Massachusetts 02110. Counsel for Respondent.

(617) 423-6100

W. REYNOLDS ALLEN,

HOGG, ALLEN, RYCE,

NORTON & BLUE, P.A..,

609 West Horatio Street,

Tampa, Florida 33606.

(813) 251-1210

19

APPENDIX A.

CorporaATE AFFILIATES OF SOUTH FLORIDA

BEVERAGE CORPORATION

ABC Advertising Corporation

Airway Drive-In Theatre Co., Inc.

Alpert’s Warehouse Showrooms, Inc.

Barclay Leasing Corp.

Bedford Mall Cinema. Inc.

Beta One Leasing, Inc.

Cinema AD-Ventures, Inc.

College Square Cinema, Inc.

Coral “levision Corporation

Dazzie, inc.

Dedham Cinema, Inc.

Des Moines Drive-In Theatre Company

Fram-Gard Theatre Corp. of Del.

General Cinema Corp. of Connecticut

General Cinema of Florida, Inc.

General Cinema Corp. of Georgia

General Cinema Corp. of Indiana

General Cinema Corp. of Iowa

General Cinema Corp. of Kansas

General Cinema Corp. of Kentucky

General Cinema Corp. of Louisiana

General Cinema Corp. of Maine

General Cinema Corp. of Maryland, Inc.

General Cinema Corp. of Massachusetts

General Cinema Corp. of Michigan

General Cinema Corp. of Minnesota, Inc.

General Cinema Corp. of Mississippi

General Cinema Corp. of Missouri

General Cinema Corp. of Nevada

General Cinema of New Mexico, Inc.

General Cinema Corp. of New York, Inc.

General Cinema Corp. of North Carolina

General Cinema Corp. of Oklahoma, Inc.

General Cinema Corp. of Pennsylvania

General Cinema Corp. of Rhode Island

General Cinema Corp. of South Carolina

General Cinema Corp. of Tennessee

General Cinema Corp. of Texas

General Cinema Corp. of Virginia

General Cinema Corp. of Washington

General Cinema Corp. of Washington, D.C.

General Cinema Corp. of West Virginia

General Cinema Corp. of Wisconsin

Ginger General Joint Venture

Hackensack General Theatre Corp.

Hanover Mall Cinema, Inc.

Hanover Street Productions, Limited

21

Harundale Cinema, Inc.

Harundale Operating Corp.

Jefferson Square Joint Venture

Jersey Division Realty Corp.

Jersey Second Division Corp.

Joliet Cinema, Inc.

Kokomo Cinema, Inc.

Laconia Theatre Corp.

Lincoln Realty Corporation

London Square Cinema, Inc.

Louis Joliet Cinema, Inc.

Louis Joliet Joint Venture

Madison Cinema, Inc.

Meyerland Cinema, Inc.

Meyerland Leasing Corp.

Midway Drive-In Theatre Co.

Midwest Theatres Corporation

Morris Plains General Theatre Corp.

Nashua Mall Cinema, Inc.

Natick Auto Theatre Corporation

NEMLLC Beta Associates

Newport Plaza Cinema, Inc.

Omaha Drive-In Theatre Company

Pepsi-Cola Bottlers of Akron, Inc.

Pepsi-Cola Bottlers of Youngstown, Inc.

Polk Realty Corporation

Route 42 Cinema, Inc.

Shoregate Cinema, Inc.

Southtown Cinema Corp.

Sunkist Soft Drinks, Inc.

Timonium Concessions, Inc.

Timonium Drive-In Theatre Corp.

Timonium Realty Corp.

Totowa General Corp.

Troy Hills General Theatre Corp.

Union General Theatre Corp.

Westgate Brockton Cinema, Inc.

Westgate Cinema, Inc.

Westgate Leasing Corp.

Westwood Triplex Cinema, Inc.