# Opposition — Figueredo v. South Florida Beverage Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0254%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1982 - **Citation:** 459 U.S. 881 ## Text ; . : i _ «* a <7 7 a —o “., : é « * > be, * a |. a] a > ~ re * , ‘ . t a es sa . we mh + . mS 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0254%3A3. Public record. Not legal advice.