Opposition Brief — Solid Waste Services, Inc. v. Dole

ied! P . iS y . U S ao

Supreme , U.S. ‘<

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ee | | (v) FILED

Fe JUN 13 1990

;' No, 89-1569 | a “y pe

Inthe Supreme Court of the Gnited States

OCTOBER TERM, 1989

SOLID WASTE SERVICES, INC., ET AL., PETITIONERS

V.

ELIZABETH DOLE, SECRETARY OF LABOR

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

KENNETH W. STARR

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

ROBERT P. DAViS

Solicitor of Labor

ALLEN H. FELDMAN

Associate Solicitor

STEVEN J. MANDEL

Deputy Associate Solicitor

EDWARD D. SIEGER

Altorney

Department of Labor

Washington, D.C. 20210

——

i=

QUESTIONS PRESENTED

1. Whether the district court correctly held that peti-

tioners waived their right to a jury trial in an action by the

Secretary seeking injunctive relief under Section 17 of the

Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. 217,

and liquidated damages under Section 16(c) of the Act, 29

U.S.C. Z5Gic).

2. Whether the district court properly awarded back

wages under the FLSA to nontestifying employees based

on the representative testimony of other employees con-

cerning hours worked.

3. Whether the district court properly exercised its dis-

cretion in allowing the Secretary to amend her complaint

after trial to assert back wage claims for newly discovered

employees, where petitioners had previously failed to

disclose the identity of those employees, notwithstanding a

timely request by the Secretary tor such disclosure.

(1)

I}

PARTIES TO THE PROCEEDING

Petitioners erroneously list Ann McLaughlin, the

former Secretary of Labor, as respondent in this case.

Elizabeth Dole, the current Secretary, was the plaintiff in

the district court and appellee in the court of appeals. She

is the respondent in this case. Joseph Mascaro, a defend-

ant in the district court, Pet. App. Sa, was not a party in

the court of appeals and is not a party in this Court.

TABLE OF CONTENTS

Page

a ae A Sa ae l

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eee cle gaia Vidig kw} we ocean eae) 2

go a eo ee ee 8

Ce a yb wis ah po ed eK EUR OE ER 14

TABLE OF AUTHORITIES

Cases:

Anderson vy. Mt. Clemens Pottery Co., 328 U.S.

AREY a er 4, 10, 11, 12

Beliz v. W.H. McLeod & Sons Packing Co., 765

Dee? CPUs BUR Gs tec p tee cree esses 12

Brennan vy. General Motors Acceptance Corp.,

ee ce ne AU ls CURED ccc ctnsvesnoees 12

Brock v. Superior Care, Inc., 840 F.2d 1054 (2d

Tce oa ce Saipan ale wav aah oe ke eae 7, 8,9

Brock v. Tony & Susan Alamo Found., 842 F.2d

I eg vk Oy gr Sere eo li

Donovan vy. Bel-Loc Diner, Inc., 780 F.2d 1113

I na gt Oo cia ea G enoly a e's 11

Donovan v. Brown Equip. & Serv. Tools, Inc.,

eee sae Oe CU LN. SUED. . os ee bce see neus 10

Donovan v. Burger King Corp., 672 F.2d 221

TE a ra teh a aD ke 1]

EEOC vy. Gilbarco, Inc., 615 F.2d 985 (4th Cir.

LE ee tra fate de aclu ae ee Gin ts 10

Ford v. Sharp, 758 F.2d 1018 (Sth Cir. 1985) ...... 14

Hodgson vy. Colonnades, Inc., 472 F.2d 42 (Sth

err reins aa ute te caer. 14

(111)

IV

Cases — Continued: Page

Marshall v. R & M Erectors, Inc., 429 F. Supp.

pik BR on. Pi ger reee r A eo 11

McLaughlin v. Ho Fat Seto, 850 F.2d 586 (9th Cir.

1988), cert. denied, 488 U.S. 1040 (1989) ....... 1]

McLaughiin v. Owens Plastering Co., 841 F.2d

es ED ook 0 de oh he a eek sea eae ee Kees 8, 9

Mt. Clemens Pottery Co. v. Anderson, 149 F.2d

461 (6th Cir. 1945), rev’d, 328 U.S. 680 (1946) .. 1]

Schlesinger v. Councilman, 420 U.S. 738 (1975) ... y)

United States v. Moore, 340 U.S. 616 (1951) ...... 8

Statutes and rules:

Fair Labor Standards Act of 1938, 29 U.S.C. 201

et seq.:

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De, Br es ED ox ceiceledpaseusecess 2

m 3 258 5 oe | | Ee 3

Bi Me Like ap EA err 3

- % (1 8 soe APO rir pa rer 4,7,9

BR. be ie, 4,7, 8,9, 10

Bree 14 3 <)> Sr 4, 7,9, 10

Fair Labor Standards Amendments of 1989, Pub.

L. No. 101-157, § 2, 103 Stat. 938 (29 U.S.C.

MEE ac clos ce cee Oe ee ee eee Ons 3

ep ee ee es cae cece eke ete )

Pe EE Go os ian s bore sere eee eae eee 7

Fed. R. Civ. P.:

SD ae raed tal ates wx aren Koorne Aa 6,9, 13

cous ale eon Sok Peta eae eats 13, 14

ns fs coe we ca ee aca e Ue in 7

Sarees penne iea ea ara AE tee 8

ea aes Jet Cees 5

a res ae aa ts

le a I es ge Rrhe- 5 1]

Jn the Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-1569

SOLID WASTE SERVICES, INC., ET AL.. PETITIONERS

V.

ELIZABETH DOLE, SECRETARY OF LABOR

ON PETIMON FORA WRIT OF CERTIORARI

LO THE UNTIED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The judgment order of the court of appeals (Pet. App.

3a-4a) is unpublished, but the decision is noted at 897 F.2d

521 (Table). The opinion of the district court (Pet. App.

l4a-102a) Is reported at 733 F. Supp. 895.

JURISDICTION

The judgment of the court of appeals was entered on

January 29, 1990. A petition for rehearing was denied on

February 26, 1990. Pet. App. la-2a. The petition for a

writ of certiorar! was filed on April 4, 1990. The juris-

diction of this Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

|. Petitioners are four interrelated corporations and

two individuals, Michael and Pasquale (Pat) Mascaro,

who (together with Joseph Mascaro) at all relevant times

owned and controlled the corporations. Pet. App.

19a-20a. Under Section 3(r) of the Fair Labor Standards

Act (FLSA), 29 U.S.C. 203(r), both corporate and in-

dividual petitioners are one “enterprise.” Pet. App.

74a-75a, 97a. As “employer[{s]” under Section 3(d) of the

FLSA, 29 U.S.C. 203(d), they are jointly and severally

liable for violations of the Act. Pet. App. 76a, 97a.

Petitioners are engaged in the solid waste disposal in-

dustry. Pet. App. 18a, 19a. Between January 1985 and

February 1989, petitioners employed over 300 individuals

in three “divisions” and under at least 25 separate payroll

classifications. /bid.' In the JPM or Mascaro division, cer-

tain truck drivers (Classifications 200, 201, 202) serviced

routes within various Pennsylvania municipalities. /d. at

24a-26a. They brought their loads to a transfer station in

Souderton, Pennsylvania, where certain yard laborers

(Classification 301) assisted in transferring the loads to

tractor-trailers. See id. at 33a-34a. Tractor-trailer drivers

(Classification 203) then took the loads to a landfill. /d. at

28a-29a, 50a. The Hoch Division contained similar classi-

fications of truck drivers and laborers, see id. at 37a-38a,

but also a separate classification (Classification 306) for

drivers in the “Northern Division.” /d. at 40a; Pet. 5. The

Lackawanna Transport Division included two groups ot

tractor-trailer drivers (Classifications 103, 203) who drove

Ihe three divisions are J.P. Mascaro & Sons (Mascaro or JPM),

Hoch Sgiitation, and Lackawanna Transport Company. Pet. App.

19a-20a. On January 1, 1987, the individual petitioners created Solid

Waste Services, Inc. to be the parent corporation of these divisions,

which continue to function as operating arms of the parent. /d. at 20a.

between three transfer stations (in Lower Merion, Abing-

ton, and South Philadelphia) and two landfills or another

transfer facility in Dunmore, Morrisville, and Buckhorn,

espectively. Pet. App. 43a-44a.

Despite previous investigations that uncovered mini-

mum wage, overtime, child labor, and recordkeeping

violations, and despite receiving Department of Labor ad-

vice on how to correct the violations (Pet. App. 58a-63a),

petitioners paid some of their workers (e.g., JPM 200 and

Hoch 306 drivers) on an incorrectly calculated “day rate”

basis. Id. at 24a, 40a.2 They paid their tractor-trailer

drivers (JPM 203, Lackawanna 103, 203) on a “per-trip”

basis. /d. at 28a, 44a. They purportedly paid certain JPM

route drivers and yard laborers (JPM 201, 202, 301) on an

hourly basis, id. at 26a-27a, 33a-34a, but deducted a half

hour per day for a lunch break — whether or not the em-

ployee actually took it. /d. at 22a. Petitioners’ supervisors

frequently punched out time cards of hourly workers

before they finished working. /d. at 27a, 33a-34a. Peti-

tioners kept no records of hours worked for their tractor-

trailer drivers (id. at 28a, 43a), and either failed to record

or inaccurately recorded hours worked for other employ-

ees. Id. at 24a, 27a, 33a-34a, 79a. Only once did peti-

tioners produce what appeared to be legitimate employee

time cards (for Hoch 306 drivers). /d. at 41a-42a. Those

cards frequently showed more hours worked than did peti-

lioners’ payroll records; in other instances, it appeared

that the same employee had spelled his last name Giffer-

> The FLSA requires payment of a minimum wage, currently $3.80

an hour for most workers, Fair Labor Standards Amendments of

1989, Pub. L. No. 101-157, § 2, 103 Stat. 938 (to be codified at 29

U.S.C. 206(a)(1)), and overtime pay, at 1'2 times the employee’s

regular rate, after a workweek longer than 40 hours. 29 U.S.C.

207(a)(1). The Act also requires employers to keep accurate records of

wages and hours. 29 U.S.C. 211(c¢).

4

ently on different cards or that several employees had the

same handwriting. /bid.

2. The Secretary of Labor brought this action against

petitioners for violations of the FLSA occurring from

January 1985 through February 1989. Pet. App. 18a. In

paragraph | of the complaint, she “invoke[d] [the district

court’s] equitable jurisdiction under section 17 of the Act

[29 U.S.C. 217],” which authorizes district courts to

restrain violations of the statute, and in her prayer for

relief, she sought injunctive relief, including restitution of

back wages, for minimum wage, overtime, child labor,

and recordkeeping violations, and additionally an award

of liquidated damages under Section 16(c) of the statute.

Pet. App. 18a, 70a-71a.3 The district court found jurisdic-

tion under Sections 16 and 17 (id. at 97a) and awarded in-

junctive relief, back wages, and liquidated damages. /d. at

6a-7a.

a. The district court found that petitioners had vio-

lated the FLSA’s recordkeeping requirements by failing to

keep records or by keeping records that were inaccurate.

Pet. App. 79a. In order to determine the extent to which

employees were underpaid, it therefore applied this

Court’s decision in Anderson v. Mt. Clemens Pottery Co.,

328 U.S. 680 (1946). Under Mt. Clemens, the court said,

an employee who proves that his employer has kept in-

adequate records “need only introduce enough evidence to

support a reasonable inference of hours worked” before

the burden shifts to the employer to negate this inference.

Pet. App. 81a. If the employer fails to do so, the court

may award damages, even though they are only approxi-

mations, based on the employee’s evidence. /d. at 82a.

} Section 16(c), 29 U.S.C. 216(c), authorizes the Secretary to sue in

“any court of competent jurisdiction” for back wages and “an equal

amount as liquidated damages.”

”

After carefully reviewing “several feet” of documentary

evidence and hearing the testimony of 65 witnesses during

an 1{-day trial, the district court determined that it had a

sufficient basis for estimating the hours that petitioners’

employees had worked. Pet. App. 18a, 83a. The court

found that JPM 200 drivers worked an average of 60 hours

a week, based on employee testimony that work generally

began at 5:00 or 6:00 a.m. and concluded between 5:00

p.m. and midnight without a lunch break. /d. at 24a-25a.4

It rejected petitioners’ rebuttal witness, a management

employee, as not credible (id. at 25a), while at the same

time ruling that the Secretary’s wage calculations were not

consistent with the evidence adduced at trial. /d. at 26a.

Similarly, the court credited testimony by JPM 201 and

202 drivers ihat petitioners did not pay them for “% hour

per day of work they did before and after their time cards

were punched, and impermissibly deducted another 2 hour

per day for lunch breaks that the employees did not take.

Pet. App. 26a-27a. It rejected peiitioners’ rebuttal

testimony as either irrelevant or consistent with the Secre-

lary’s evidence. /d. at 27a, 85a. The court awarded JPM

laborers (Classification 301) compensation for a daily

average of 3’2 hours worked but unpaid at the Souderton

transfer station, based in part on the “candid and credible”

testimony of a laborer and in part on the corroborating

testimony of truck drivers who used the yard during the

relevant period. /d. at 33a-35a. Petitioners’ rebuttal wit-

nesses did not contradict this evidence, the court explained,

because they testified about a later period. /d. at 34a.

* The court found overwhelming credible evidence that petitioners

actively discouraged employees from taking lunch breaks. Pet. App.

23a. The court also credited specific, nearly uniform testimony that

employees could not take lunch breaks and still complete work re

quirements. Jd. at 7S8a-79a.

6

On the basis of employee testimony that all Division

employees worked approximately the same 9 to 11 hours

on short days, up to 16 hours on long days, and 8 hours on

Saturday, the district court found that the Hoch “North-

ern Division” (Classification 306) employees worked an

average of 70 hours a week. Pet. App. 40a-41a, 43a. It re-

jected the time cards petitioners submitted in rebuttal as

“at worst, blatant forgeries, visible to an untrained eye, or,

at best, wholly unreliable.” /d. at 42a. The court separate-

ly calculated the hours of the Lackawanna tractor-trailer

drivers, based on testimony from these and other drivers

about the average time required to drive between the rele-

vant transfer stations and landfills, together with waiting

time at these locations. /d. at 43a-48a.

b. After trial and pursuant to Fed. R. Civ. P. 15(b),

the court granted the Secretary’s motion to amend her

complaint to add Lackawanna as a defendant and to in-

clude Lackawanna employees among those entitled to

back wages. Pet. App. 6S5a-70a.° The court concluded that

the amendment alleged the same violations as the original

complaint, and was necessary because petitioners’ failure

to disclose information about Lackawanna had prevented

the Secretary trom learning of Lackawanna’s existence un-

til the first day of trial. /d. at 67a-68a. The court found

that petitioners had adequate time to prepare a defense

after the Secretary notified the parties of the intended

amendment on the first day of trial, and it noted that

although the court repeatedly had granted continuances

on other occasions, petitioners had never sought a con-

tinuance to meet the Secretary’s new evidence. /d. at 69a.

Ihe district court applied the third’ sentence of Fed. R. Civ. P.

15(b), which directs courts freely to allow amendments to contorm to

the evidence when presentation of the merits would be served thereby

and the objecting party tails to show prejudice.

c. The court also rejected petitioners’ argument that it

had no authority to award liquidated damages. The court

recognized that such damages are available under Section

16(c) of the FLSA and that employers have a right to a jury

trial under that Section. Pet. App. 7la.® It also recognized

that the Secretary could be precluded from seeking liqui-

dated damages if she failed to invoke the court’s jurisdic-

tion under Section 16(c), “whether or not [the Secretary’s]

complaint could be viewed as seeking liquidated damages

under section 16.” Pet. App. 72a (quoting Brock v.

Superior Care, Inc., 840 F.2d 1054, 1064 (2d Cir. 1988)).

But in the present case, the court held, “the complaint

plainly cites section 16(c) of the Act,” and petitioners chose

to defend against liquidated damages on the merits, “with-

Out noting their right to a jury trial” until the close of the

Secretary’s case. Pet. App. 72a-73a. The court observed

that petitioners had failed to make a timely demand for a

jury as of right under Fed. R. Civ. P. 38(a) and had failed

to make a motion addressed to the court’s discretion under

Fed. R. Civ. P. 39(b). Pet. App. 73a-74a. Accordingly, the

court found jurisdiction under both Sections 16 and 17 and

awarded liquidated damages under Section 16(c) without a

jury trial. Pet. App. 97a, 10la-102a.’ The court of appeals,

without opinion, affirmed. /d. at 3a-4a.

®° A party has a right to a jury trial under Section 16(c) on the issue

of an employer's underlying liability for back wages, while the court

determines the additional amount of liquidated damages under that

Section. See 29 U.S.C. 260; Brock vy. Superior Cure, Inc., 840 F.2d

1054, 1063 (2d Cir. 1988). Back wages under Section 17, on the other

hand, are part of a restitutionary remedy available without a jury

trial. See Superior Cure, 840 F.2d at 1063.

~ The district court concluded that liquidated damages were appro-

priate in this case, in light of petitioners’ “flagrant disregard” for the

FLSA’s recordkeeping requirements and other evidence “which hints

at an intent to violate the Act.” Pet. App. 94a. The petition does not

dispute that tinding.

ARGUMENT

The court of appeals’ judgment order, which affirmed a

detailed and factbound district court decision, is correct

and does not conflict with any decision of this Court or of

any other court of appeals. Further review is therefore un-

warranted.

1. In awarding liquidated damages under Section 16(c)

without a jury trial (see note 6, supra), the district court

correctly applied the well established principle that a party

must demand a jury trial in a timely manner, or the right

will be waived. Fed. R. Civ. P. 38(d); United States v.

’ Moore, 340 U.S. 616, 621 (1951). While this demand must

be made within ten days of service of the last pleading

directed to the issue on which a jury trial is available (Fed.

R. Civ. P. 38(b)), a district court has discretion, upon mo-

tion, to order a jury trial at a later point. Fed. R. Civ. P.

39(b). In the present case, no such motion was made.

Rather, as the district court noted (Pet. App. 72a-73a),

petitioners did not raise the jury trial issue until their mo-

tion for a directed verdict at the close of the Secretary’s

evidence.

Thus, the district court correctly concluded that petition-

ers had waived any right to a jury with regard to the Secre-

tary’s claim for liquidated damages. Petitioners plainly

knew before trial that liquidated damages were al issue; the

Secretary had requested such relief in her complaint, and

petitioners’ pretrial brief had asserted a substantive defense

to liquidated damages (but not a demand for trial by jury).

Pet. App. 72a-73a. And petitioners were on notice that a

jury trial might be available to them upon the Issuance, a

year before trial in this case, of the decision in Supertor

Care —the case on which they principally rely. See 840 F.2d

at 1063-1064; Pet. App. 18a n.1; see also McLaughlin v.

Owens Plastering Co., 841 F.2d 299 (9th Cir. 1988).

9

Petitioners attempt to avoid the district court’s waiver

ruling by arguing that the court impermissibly awarded

Section 16(c) liquidated damages as an incident to an

equitable action under Section 17. Pet. 7-9. But the district

court found jurisdiction proper under both Sections 16

and 17 (Pet. App. 97a), thus correcting any defective alle-

gation Of jurisdiction contained in the Secretary’s plead-

ings. See 28 U.S.C. 1653; Schlesinger v. Councilman, 420

U.S. 738, 742 n.5, 744 n.9 (1975); see also Fed. R. Civ. P.

15(b). Having found jurisdiction under both of these sec-

tions, the court had the authority to award liquidated

damages under Section 16(c). See Pet. App. 97a.

Petitioners also contend that they did not waive their

right to a jury trial because they “assumed that no jury

trial could be had” on the Section 17 issues. Pet. 11 (citing

Supertor Care, 840 f.2d at 1064). As the district court

recognized (Pet. App. 72a), however, the complaint in this

case, unlike the complaint in Superior Care, specifically

invoked Section 16(c). Additionally, unlike the employer

in Superior Care, petitioners failed to ask the district court

before trial to exclude any evidence pertaining to liqui-

dated damages. Pet. App. 72a.

Finally, petitioners assert (Pet. 7, 13) that the court of

appeals’ decision is in conflict with the decisions of other

courts of appeals. Phe cases petitioners cite, however, are

easily distinguishable. kor example, in Superior Care, the

Second Circuit held that a district court could not award

liquidated damages in a Section 17 action. The court did

* Pettuoners erroneously assert (Pet. 9) that once a trial court en-

joms the withholding of back wages under Section 17 “it lacks the

power to award liquidated damages.” In tact, the court lacks such

power only i itacts se/e/y under Section 17. It certainly has the power

to act under both Sections l6(e) and 17 and to award relief under both

sections. See Owens Plasicring, 841 b.2d at 301; Superior Care, 840

b.2d at 1064.

10

not decide whether a district court, as in this case, could

assert jurisdiction and award relief under both Sections

16(c) and 17 without a jury trial, when the employer had

notice of the provisions on which the Secretary was basing

her claims, and yet the employer did not timely request a

jury trial. And none of the other cases cited by petitioners

(Pet. 7-12) held that a district court lacks authority to find

a waiver of jury trial rights, or is precluded from awarding

complete relief without a jury trial under Sections 16(c)

and 17. See, e.g., EEOC v. Gilbarco, Inc., 615 F.2d 985,

990-991 (4th Cir. 1980) (affirming a denial of liquidated

damages after accepting the Secretary’s view that, despite

a request for liquidated damages, the Secretary had

brought the action only under Section 17); Donovan v.

Brown Equip. & Serv. Tools, Inc., 666 F.2d 148, 156 (Sth

Cir. 1982) (reversing denial of back wages under Section

17 and stating in dicta that courts cannot award liquidated

damages under that Section).

2. Petitioners’ challenge (Pet. 13-19) to the district

court’s application of Mt. Clemens is also meritless. The

district court reasonably calculated the extent of peti-

tioners’ wage violations—by carefully considering repre-

sentative employee testimony that petitioners failed

credibly to rebut.

In Mr. Clemens, this Court held that if an employer has

failed to keep proper records of wages and hours as re-

quired by law, an employee seeking to prove a violation of

the FLSA need only “prove[ ] that he has in fact per-

formed work for which he was improperly compensated”

and “produce[ ] sufficient evidence to show the amount

and extent of that work as a matter of just and reasonable

inference.” 328 U.S. at 687. Thereafter, the burden shifts

to the employer “to come forward with evidence of the

precise amount of work performed or with evidence to

negative the reasonableness of the inference to be drawn

from the employee’s evidence.” /d. at 687-688. If the

employer fails to meet that burden, damages may be

awarded “even though the result be only approximate.” Jd.

at 688. That allocation of the burden of proof “proper[ly]

and fair{ly)” avoids penalizing employees by “plac[ing] a

premium on an employer’s failure to keep proper records

in contormity with his statutory duty.” /d. at 687.

In applying Mr. Clemens, the lower couris have uni-

formly held that the Secretary may offer representative

testimony on behalf of an entire class of employees. See,

e.g., McLaughlin v. Ho Fat Seto, 850 F.2d 586 (9th Cir.

1988), cert. denied, 488 U.S. 1040 (1989); Brock v. Tony &

Susan Alamo Found., 842 F.2d 1018, 1019-1020 (8th Cir.

1988); Donovan v. Bel-Loc Diner, Inc., 780 F.2d 1113,

1116 (4th Cir. 1985).? The obvious pragmatic basis for

permitting reliance on such representative testimony is to

avoid burdening the trial courts with a parade of cumu-

lative witnesses.'° Moreover, there is no merit to peti-

lioners’ assertion (Pet. 15) that a court may accept repre-

sentative testimony only if the employees — testifying and

non-testifying — spend all of their working time together. !!

* Indeed, Afr. Clemens itself was a suit by a local union and seven of

its members on behalt of some 300 similarly situated employees, only

eight of whom testified at trial. See Mr. Clemens Pottery Co. v.

Anderson, 149 F.2d 461, 461-462 (6th Cir. 1945), rev’d, 328 U.S. 680

(1946).

'’ See, e.g., Donovan \. Burger King Corp., 672 F.2d 221, 225 (st

Cir, 1982) (significantly limiting the number of witnesses in an FLSA

case Was within the trial court’s discretion under Fed. R. Evid. 403,

because it prevents the “needless presentation of cumulative

evidence”); Bel-Loc Diner, 780 F.2d at 1116 (awards to non-testifying

employees based on testimony by a “small percentage” of employees

are permissible so long as the testimony ts “fairly representational”).

'! Marshally. R & M Erectors, Inc., 429 F. Supp. 771, 777 (D. Del.

1$77), on Which petitioners exclusively rely (Pet. 15), does not hold to

the contrary. In that case, the district court held that when employees

12

Common sense shows that there are many ways to reach a

“Just and reasonable inference,” Mr. Clemens, 328 U.S. at

687, of hours worked; indeed, imposing a requirement

that all of the employees work together all the time would

be impractical, because the nature of employees’ work

often requires them to work separately from one another.

Finally, there is no requirement that testifying employees

have “personal knowledge” of work performed by those

who do not testify. Beliz v. W.H. McLeod & Sons Packing

Co., 765 F.2d 1317, 1331 (Sth Cir. 1985), on which peti-

tioners rely (Pet. 16-17), holds no such thing; indeed, the

Fifth Circuit has long recognized that personal knowledge

is not necessary. See Brennan v. General Motors Accept-

ance Corp., 482 F.2d 825, 827 (1973) (affirming award of

back pay to 26 employees who worked “long and irregular

hours in the field * * * on their own,” when only 15 of

these employees testitied).'?

“leave a central location together at the beginning of a work day, work

together during the day, and report back to the central location at the

end of the day,” representative testimony “can” make out a prima

facie case that all the employees worked the same number ot hours.

The court did not hold, however, that representative testimony Is 1n-

appropriate in other circumstances.

‘2 Petitioner’s remaining complaints about the amount of their back

pay liability are simply factbound disagreements with the findings of

the district court, For example, petitioners erroneously assert (Pet. 16)

that the district court relied on the testimony of only one four-month

laborer in awarding back wages to 90 JPM 301 laborers. In fact, the

district court identified substantial corroboration for that testimony

(Pet. App. 33a, 78a-79a), and it noted the absence of any rebuttal

testimony for the relevant time periods (/d. al 34a). In any event, petl-

tioners “cannot be heard to complain” if the back wage aw ard lacks

“precision of measurement,” Mr. Clemens, 328 U.S. at 688, because

their own recordkeeping violations (which may have included “blatant

forgeries,” Pet. App. 42a) created the imprecision,

13

3. In allowing the Secretary to amend her complaint,

the district court correctly applied Fed. R. Civ. P. 15(b),

Which allows such amendments “treely” to further presen-

‘ation of the merits of an action, unless the parly Opposing

the amendment shows prejudice to its defense on the

merits.'> The court concluded that the requested amend-

ment — adding Lackawanna as a defendant, and including

Lackawanna employees among those entitled to back

Wages—Was well within the scope of the Secretary’s

original complaint. Pet. App. 66a-67a. Moreover, the

court explained, the Secretary’s failure to amend her com-

plaint earlier was the result of petitioners’ failure to

disclose Lackawanna’s existence — despite the Secretary’s

timely request for relevant documents during discovery.

Id. at 67a-68a. In addition, the court found no prejudice

lo petitioners, noting that the claims for the additional

employees were identical to those already at issue, and that

petitioners had sufficient time to prepare a defense. Jd. at

69a-70a. Under those circumstances, the court acted well

Within its discretion in allowing the amendment.

Petitioners contend, however, that the Secretary’s

amendment was governed not by Rule 15(b), but rather by

Rule 16(e), which allows modification of pretrial orders

“only to prevent manifest injustice.” Pet. 19-2]. Peti-

lioners did not present that contention to the district court

and they have therefore waived it. In any event, petitioners

have not shown that Rule 16(e), if applicable, would fore-

close the amendment in this case. Because the district

court deemed petitioners’ failure to disclose information

about Lackawanna “perilously close to bad faith con-

* Although the district court granted the motion alter trial, it noted

that the Secretary had “made clear her intent to clude Lackawanna

as a defendant on the tirst day of trial.” Pet. App. 69a. See also id. at

O54.

14

duct,” Pet. App. 68a n.13, there is little question that the

amendment would have satisfied even the “manifest in-

justice” standard under Rule 16(e). See Hodgson v. Colon-

nades, Inc., 472 F.2d 42 (Sth Cir. 1973) (finding an abuse

of discretion in refusing to allow an amendment adding

employees to an FLSA complaint seeking back wages).'4

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT P. DAVIS

Solicitor of Labor

ALLEN H. FELDMAN

Associate Solicitor

STEVEN J. MANDEL

Deputy Associate Solicitor

EDWARD D. SIEGER

Attorney

Department of Labor

JUNE 1990

'+ Petitioner’s reliance on Ford v. Sharp, 758 F.2d 1018 (Sth Cir.

1985), is misplaced. There, unlike here, the district court disallowed

an amendment to an FLSA complaint because it found that the Secre-

tary had the relevant records two years before trial and that the

employer had no chance to prepare a defense. /d. at 1025.

US GOVERNMENT PRINTING OFFICE 1990— 262-203 00944