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Sep 19 14

Continuing Legal Education notes (Trial Evidence)

by merlin

Trial Evidence CLE

September 19, 2014 – State Bar HQ


Georgia has adopted an Evidence Code based on the Federal Rules, so everything said here is directly applicable to the corresponding Georgia rule, though couched as FRE (Federal Rules of Evidence).


Thomas A. Mauet (University of Arizona) – Former US Attorney, Illinois State Attorney, private attorney


  1. Need to WIN in the trial Court (b/c appellate reversal on evidentiary grounds is EXCEEDINGLY rare)
  2. Move the mind of the judge
  3. FRE 103 objections

-Right objection

-Right reason

-Right time


His Three R’s


If so, is it RELIABLE (ex. Not hearsay)?

If so, is it RIGHT (did it then get transferred to factfinder correctly)?


General Relevance- FRE 401-403

  • Logical Rules (General relevance)
  • What’s in issue (pleadings and underlying substantive law)?
  • What’s it prove (“any tendency”; “more or less probable”)?
  • 403 balancing test (“substantially outweighs”):

(a) “unfair prejudice”;

(b) “confusion, repetition”

–           Case is Old Chief (1997) – can you prove it in a less inflammatory way?

“Prejudicial”, by itself, is probably the least persuasive term because it is OVERUSED.  Got to elaborate.


Special Relevance – FRE 404-415

  • Situations based on POLICY and POLITICS
  1. Character Traits (FRE 404-405) – The kind of person they are
  • Essential Element (405(b)) – says that every so often character is an essential element of the case
    • This arises in primarily CIVIL matters (ex. Custody disputes)
  • Circumstantial evidence of conduct (404(a))
    • This is a criminal case issue only – did they act consistently in that situation (using it only in criminal situations is a POLICY choice)
    • It is an issue that must be brought in by Defendant, and then rebutted by prosecution (the State can’t open that door)
    • How can they prove character, and whose character is involved by the proof?
    • Special exception – lets prosecution attack Defendant’s character if they open the door about the Victim’s character.
  1. Other Acts (FRE 404(b)) – Particular incident in past that meets the general relevance standards; inadmissible to show “in accordance with”, “propensity for” and “bad character”
    • Almost ALL appellate reversal happens from OVER-ADMISSION
    • We know that jurors put TOO MUCH WEIGHT on past events.
    • Use appellate court language – “propensity for” and “bad character”
    • It BECOMES probative if it can be used to prove onbe of the specific things actually in issue (ex. identity, plan, preparation, motive, opportunity, absence of mistake, or accident)
    • Argue the PROPER USE, and then also deny that you are offering it for the IMPROPER USE
    • Argue that NOT evidence of other crimes (once does not mean always); argue NOT evidence of a “continuing course of conduct”; argue that the two are NOT “inextricably intertwined” (See Huddleston, 1988, and Dowling, 1990)
  2. Habit (FRE 406) – Not the same as above
    • Gets confused with character often
    • Admissible if it can be shown to be a “routine practice”


Cross examination (405(a)) – “Have you heard…?”; “Did you know…?”

  • Can cross-examine a character witness with specific instances of inconsistent conduct (Michelson case – 1948)
  • Couldn’t use something the guy did 20 years ago to show his new action was the same.



Policy exclusions: FRE 407-415


  • FRE 407 (subsequent remedial measures)
    • Inadmissible to show fault (ex. ability to pay, etc.); admissible if probative of specific things actually in issue (ex. negligence and strict liability, product and design defects, warning and instruction defects, recalls [if governmental, then ADMISSIBLE; if private, NOT ADMISSIBLE], “state of the art”, and ownership or control)
  • FRE 409 (Medical expenses rule – Inadmissible to prove)
  • FRE 411 (INSURANCE; it could show agency, control, bias, and interest)
    • “Don’t worry; I’m insured”; might be admissible if it is then contested
  • FRE 408 (Offers of compromise or settlement offers); these are distinctly inadmissible.
  • FRE 410 (Plea offers)
    • Was settlement of negotiation intended?
    • What if it shows BIAS or INTEREST???


Sexual Assaults

FRE 412-415

  • Victim’s past behavior in sexual assaults (FRE 412)
  • Past acts with Defendant – admissible
  • Identity is uncertain – admissible
  • Defendant’s prior similar acts in sexual assaults (FRE 413) – ADMISSIBLE
  • Defendant’s prior similar acts in child molestation (FRE 414) – ADMISSIBLE
  • Civil cases (FRE 415) – This applies that rule (past sexual assault evidence is admissible in current cases) to civil cases (ex. employer sexual harassment)



FRE 501+State Law

In federal diversity cases, it is the forum jurisdiction privilege law that applies (even if it is STATE law, not federal)

  • Privileges are personal (They belong to who? That is the only person that can WAIVE them)
  • Termination rule that applies (what about when they terminate on the occurrence of a particular event?)
  • Domestic Relations cases (the marital privilege):

Right to bar a spouse from testifying VERSUS marital communications are privileged

Federal court (because of the Trammel decision in 1979), the testifying spouse is the holder of the privilege (most States say opposite)

Almost every jurisdiction says that the privilege terminates when the marriage terminates

Interspousal torts and joint crimes: Usually not privileged; DEAL WITH THIS UP FRONT; The interspousal communications privilege NEVER TERMINATES in most cases, and applies in every jurisdiction


  • Attorney-Client Privilege

Must be a communication specifically to deal with a LEGAL MATTER (also can only be between LAWYER/his agent and CLIENT)

Need to specifically contractually bring agents within the attorney-client privilege

  • Check Swidler & Berlin, 1998 – even death of client doesn’t terminate attorney-client privilege


FRE 502 (this is known as a “quick peek”, and there must be a WRITTEN AGREEMENT, and it needs to be incorporated by the judge into a written order – then it is binding on all third parties):

  • Attorney-Client AND work-product doctrines are affected
  • Limited subject-matter waiver
  • This covers INADVERTENT DISCLOSURES during Discovery
  • It addresses the effect of Federal Court Orders on waiver as to third parties


Doctor-Patient Privilege

Federal Courts have NEVER recognized a doctor-patient privilege; current thing is a LIMITED privilege only (Jaffe v. Redmon, 1996 – psychotherapist and patient have a privilege, definitely)

  • Most STATES have far broader rules (make sure of the particular privilege – communications, or records, or BOTH)
  • There is a MEDICAL RECORDS privacy rule (ex. HIPAA and State parallels)
  • Waiver and nonapplicability apply (put injury in issue and the records and communications become directly relevant)


  1. Is it RELIABLE?

Hearsay (FRE 801(c) – dividing all things up into hearsay and non-hearsay, and there are EXCEPTIONS to inadmissible hearsay in 801(d), 803, & 804).


“Reliable” – First-hand knowledge (REQUIREMENT)



Definition of hearsay (FRE 801(c)):

  1. Is there a “statement” (FRE 801(a))?
  • It must be an assertion or assertive conduct
  1. Was the statement made “out of court”?
  2. Is the statement being “offered to prove the truth of the matter asserted”?
  • Versus whether it is being offered simply to prove that it was said!!!!



  1. The statement may have Independent Legal Significance
  • Defamation
  • Fraudulent Misrepresentation
  • Contract (existence and terms of one)
  • Gift (versus purchase, theft, etc.)
  • Consent (res ipsa loquitor)
  1. Impeachment with Prior Inconsistent Statement
    1. Notice (effect on the party to show knowledge);
    2. Fear/State of mind induced BY HEARING

(It has probative value BECAUSE IT WAS SAID)


Common Hearsay Exceptions:

  • 801(d) – Prior Statements


The 6th Amendment Confrontation Clause:

  • Crawford, 2004 (even if it is a hearsay objection, it still violates the 6th Amendment)
  • Davis and Hammon, 2006


  1. Statement by Party-Opponent (FRE 801(d)(2))

Rule is based on adversarial nature – if they said it, you can use it.

Don’t confuse this with the idea of a statement against party interest

  • Statement of an agent or a CO-CONSPIRATOR is admissible, BUT:
    • Must prove that person was employee, in scope of employment, or person was a co-conspirator (did conspiracy, with all legal requirements, exist), in furtherance of the conspiracy itself
    • Remember that SILENCE can qualify
  1. Prior consistent versus inconsistent statements (FRY 801(d)(1))
  • Consistent (it is hearsay, and irrelevant, unless it is a prior identification or a recent fabrication)
  • Inconsistent (Policy says it is NOT hearsay, and certainly relevant; used for impeachment and also for substantive purposes)
  1. Statements against interest (FRE 804(b)(3))
  • Witness is unavailable;
  • Statement is “SO FAR CONTRARY to pecuniary, proprietary, or penal self-interest;
  • When it was made (shows truth of statement against interest); OR
  • Statement sometimes admitted because it exculpates the accused
  1. Former testimony (FRE 804(b)(1)

Allowed when a witness is “unavailable” (or testifying contrary);

  • Is it fair to the opposing party? Were they present at the earlier hearing (and have an opportunity to examine witness then) – or, in civil cases, were they a “predecessor in interest”?
  • Are the issues in the proceedings the same?
  1. Spontaneous Statements (Present Sense Impressions under 803(1) versus Excited Utterances under 803(2))
  • Perceiving event or immediately thereafter, describing or explaining event


  • Under stress or excitement OR related to a startling event

Excited utterance rule = “Oh my God” rule; psychologists agree this is a stupid rule, but the law likes it still

  • Language under Excited Utterance exception includes RELATING TO startling event
  1. Present mental or physical condition (FRE 803(3))

Can be direct evidence OR circumstantial (proof of condition)

  • Also casts light on EMOTIONAL CONDITION

Present state of mind as proof of future conduct:

Used in execution, revocation, and alteration of terms of a WILL.

See Shepard, 1933, and Hillmon, 1892

Most federal Courts say Hillmon is no longer applicable (can’t use a statement of possible future intent to prove actions in conformity to the intention); most States permit that presumption

  1. Dying declarations (FRE 804(b)(2))
  • Witness is NECESSARILY unavailable
  • Used in both criminal cases involving homicide and also in civil cases
  • Declarant needs to believe their death is “imminent”
  • It concerns the cause or circumstances of their impending death
  1. Statements for diagnosis and treatment (FRE 803(4))
  • Is the statement about the patient?
  • Is it symptoms and medical history?
  • Does it help diagnosis or treatment?
  • Treating versus Non-Treating?
  • Is it a question of PURE FAULT? Those statements STAY OUT (make a motion to exclude such statements and then RAISE THE OBJECTION WHEN APPLICABLE)
  • Statement doesn’t just have to be BY the patient; can be ABOUT the patient

Distinguish this stuff from the stuff the victim might say to an EXPERT WITNESS.


  1. Records
  2. Business Records (FRE 803(6),(7))

Certification in FRE 902 (certain records, such as official records, newspapers, etc., are self-authenticating).  Conversely, FRE 901 – how to authenticate evidence to establish that it is what it purports to be

Must be:

“qualified witness”;


5-Step Foundation (check the booklet)

If it is admitted as a business record, not everything in it gets in:

  • Does making of record indicate a lack of trustworthiness?
  • What about DOUBLE-HEARSAY?
  • Expert opinions are subject to their own level of inquiry.
  • If it is a summary, be aware!

See Palmer v. Hoffman, 1943, and Johnson v. Lutz, NY, 1903.


  • Double Hearsay in business records:

Johnson v. Lutz – May be several folks making a report, at several different hierarchical levels, but there is ONLY ONE BUSINESS

  • However – what if some of the info was NOT from an employee? They wouldn’t have any presumed duty of accuracy.
  • Example – conclusory statements by a non-employee.

You would still have to show a FOUNDATION for these separate statements (“the business record exception does an end-run around expert witnesses”)

  • Simple test to ask the judge: would he let them do this LIVE?

Summaries:            FRE 1000(6) – NOT THE SAME as business record exception


Should do BOTH – foundation objection AND business record objection; should immediately provide NOTICE if improperly designated (as business record when it should be foundational, and vice-versa)


Present objections to evidence anticipated LATER in trial early on – get a ruling AHEAD OF TIME when you can.



  1. Is the witness competent to testify?


Rule 601 – Erie Doctrine: Forum jurisdiction competency rule applies in diversity jurisdiction cases.

Direct Examination

FRE 602 – Witness must have personal knowledge.

Can lead IF NECESSARY under FRE 607

FRE 612 is refreshing recollection; provides procedure to refresh, admissibility as an exhibit, and CAN BE USED ON CROSS.  That rule also covers when a writing is used to refresh BEFORE TESTIFYING (it’s in judge’s discretion to turn it over to the other side)


Impeachment with Prior Inconsistent Statements

  1. Impeachment must be MATERIAL (not insignificant);
  2. Ethically, must have a VALID FACTUAL BASIS TO SUGGEST THE IMPEACHING MATERIAL (be able to BACK IT UP with proof)
  3. Get them to ADMIT the inconsistency, as a final step to successful impeachment


If you can’t prove it, they might be able to successfully move for mistrial.


Prior Bad Acts (FRE 608) are kind of unimportant.


Cross Examination of a Deposition (No in-Court Witness)

  • FRE 806 is means: When testimony comes in by hearsay exception – out of Court declarant.
  • Can use any of the impeachment methods you would ordinarily be able to use.
    • TIP: Ask the judge to allow you to have another person read the answers from the deposition



FRE 901, 902, 803, 804


Chain of Custody:

  • Only has to be sufficient proof that “it is what it purports to be”


Remember: Visual Aids (don’t go back with the jury) versus DEMONSTRATIVE EVIDENCE

  • To make this admissible, must argue and CONVINCE THE JUDGE that it is the “right and fair thing to do”.


The “Best Evidence” Rule:

  1. Evidence was lost or destroyed in good faith;
  2. Other party won’t give it up; OR
Sep 18 14

Re-Post (7/17/11 on Leaves of Absence for Georgia Attorneys)

by merlin

The below post was originally put on this site three years ago, and my class reunion mentioned therein happened, but I could not go.  Nevertheless, I have upcoming conflicts, and updated the Uniform Superior Court Rule (16.1) to reflect the most recent text.  I have a few upcoming conflicts that I do not want to interfere with my trial schedule, and the refresher is useful.  The re-post follows, with the exception of the updated Court Rule:


Apologies are necessary for the extraordinarily long hiatus between new posts on this site. This is not because of lack of new information that could be written about, and is certainly not because of any lack of information that should be written about. However, a powerful lack of motivation to accomplish the necessary tasks of office administration – resulting in doing the “bare minimum” required to get just enough done to meet obligations as they arise – coupled with an overwhelming amount of deadlines coinciding together in the past week, has caused publication of new material to be put on hold temporarily.  If it makes any difference, there have been substantial personal distractions that interfered with the orderly administration of a smoothly-functioning law office in the past week, but that isn’t much of an excuse.

The other day, I mentioned to a client that I am compiling a list of judges, opposing counsel, and Courts for each case.  In part, I’m doing this to “take stock” of my current caseload, but I’m also doing this because my ten-year law school reunion in New Orleans happens in October, and I have certain legal requirements I have to comply with to allow for time away from the practice of law for this.  The Superior Courts of Georgia provide for Leaves of Absence in the Court Rules, and I have (heavily) excerpted the pertinent rules for leaves of absence of less than thirty days below.  I have done this because of the ignorance of the general public about the fact that attorneys have certain rules they must comply with, and because I have seen various attorneys also fail to comply with these, themselves (to the detriment of their clients, often causing incarceration of the unwary, or worse), and I want to remedy any ignorance that people might have.

Rule 16.1. Leaves for Thirty (30) Calendar Days or Less”

An attorney of record shall be entitled to a leave of absence for thirty days or less from court appearance in pending matters which are neither on a published calendar for court appearance, nor noticed for a hearing during the requested time, by submitting to the clerk of the court at least thirty (30) calendar days prior to the effective date for the proposed leave, a written notice containing:

(a) a list of the actions to be protected, including the action numbers;

(b) the reason for leave of absence; and

(c) the duration of the requested leave of absence.

A copy of the notice shall be sent, contemporaneously, to the judge before whom an action is pending and all opposing counsel. Unless opposing counsel files a written objection within ten (10) days with the clerk of the court, with a copy to the court and all counsel of record, or the court responds denying the leave, such leave will stand granted without entry of an order. If objection is filed, the court, upon request of any counsel, will conduct a conference with all counsel to determine whether the court will, by order, grant the requested leave of absence.

The clerk of the court shall retain leave of absence notices in a chronological file two (2) calendar years; thereafter, the notices may be discarded

Sep 11 14

September 11 – Indefinite Detention is STILL with us.

by merlin

On September 11, 2001, I was trying my first solo case, on behalf of the State.  I was interrupted as I was beginning my closing arguments by someone else on the DA’s Office staff, who let me know what happened.  I let the Court know, via bench conference, and I lost that case.  Nobody was going to jail once that cat was let out of the bag, no matter how evident their guilt might be.

What is interesting to me is that the attacks were designed to shock America from its sense of security, and yet indefinite detention continues.  It is as if we have been beaten and smiled at our attackers, but told them they were right to hit us, and begged them to hit us again.  This is wrong.

Sep 3 14


by merlin

For anyone trying to reach me, please use the number 678-943-3532 right now.  The telephone service to my office has been shut down entirely, as AT&T is properly re-connecting the telephone line for this office (which, apparently, takes several days).

I apologize for any inconvenience.  E-mail to remains the best way to reach me!

Sep 1 14

Workers, Unite! Happy Labor Day.

by merlin

Today is the holiday known as Labor Day, and the following 1948 case,Bay Ridge Operating Co. v. Aaron et al. Huron Stevedoring Corporation v. Blue et al., 334 U.S. 446, shows the victory won by workers in America to be paid time-and-a-half rates for overtime (beyond 40 hours per week) employment.  “Every contract of employment, written or oral, explicitly or implicitly includes a regular rate of pay for the person employed. Walling v. A. H. Belo Corp., supra, 316 U.S. 63162 S.Ct. 1227; Walling v. Halliburton Oil Well Cementing Co., supra. ”  Bay Ridge Operating Co., 334 U.S. 446 at 461 (1948).

No time is a good time needlessly to sap the principle of collective bargaining or to disturb harmonious and fruitful relations between employers and employees brought about by collective bargaining.” Id. at 448 (Concurrence of J. Frankfurter).

 Messrs. Peyton Ford and Marvin C. Taylor, both of Washington, D.C., for petitioners.

          Mr. Monroe Goldwater, of New York City, for respondents.

           Mr. Justice REED delivered the opinion of the Court.

          These cases present another aspect of the perplexing problem of what constitutes the regular rate of pay which the Fair Labor Standards Act requires to be used in computing the proper payment for work in excess of forty hours. The applicable provisions read as follows:

          ‘Sec. 7. (a) No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce—

          (3) for a workweek longer than forty hours after the expiration of the second year from such date, unless 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.’1

          The problem posed is the method of computing the regular rate of pay for longshoremen who work in foreign and interstate commerce varying and irregular hours throughout the workweek under a collective bargaining agreement for handling cargo which provides contract straight time hourly rates for work done within a prescribed 44-hour time schedule and contract overtime rates for all work done outside the straight time hours.2

          These two suits were brought as class actions on behalf of all longshoremen employed by two stevedoring companies, Bay Ridge Operating Co., and Huron Stevedoring Corp., to recover unpaid statutory excess compensation3 in accordance with § 16(b) of the Fair Labor Standards Act.4 By stipulation the claims of ten specific longshoremen in each case were severed and the two suits were consolidated for trial, leaving the claims of the other plaintiffs pending on the docket. The claims of the plaintiffs here are for the period October 1, 1943, to September 30, 1945.

          The terms of employment for the respondents, longshoremen working in the Port of New York, were fixed for the period in question by the collective bargaining agreement between the International Longshoremens Association and the New York Shipping Association together with certain steamship and stevedore companies. It was applicable to the two petitioners. The agreement established a ‘basic working day’ of eight hours and a ‘basic working week,’ that is, workweek, of forty-four hours; hourly rates for different types of cargo were specified for work between 8 a.m. and 12 noon and between 1 p.m. and 5 p.m. during five working days of the week, Monday through Friday, and from 8 a.m. to 12 noon on Saturday, and a different schedule of rates for work during all other hours in the workweek. The first schedule was called ‘straight time’ rates, and the second schedule was entitled ‘overtime’ rates. This opinion designates these rates as contract straight time and contract overtime. For four types of cargo the overtime rates were exactly one and a half times the straight time rates; for four other types the overtime rates were slightly less than one and a half times the straight time rates. The contract straight time rates ranged from $1.25 to $2.50 an hour. The contract overtime rates were paid for all work on Sundays and legal holidays. The contract provided for no differential for work in excess of forty hours in a week.5

          Respondents claim that their regular rate of pay under the contract for any workweek within the meaning of s 7(a), is the average hourly rate computed by dividing the total number of hours worked in any workweek for any single employer into the total compensation received from that employer during that week; and that in those workweeks in which they worked more than forty hours for any one employer they were entitled by § 7(a) to statutory excess compensation for all such excess hours computed on the basis of that rate. The petitioners claim that the straight time rates are the regular rates, and that they have, therefore, with minor exceptions not presented by this review, complied with the requirements of § 7(a). That is, no rates except straight time rates are to be taken into consideration in computing the regular rate. The petitioners contend that the contract overtime rates were intended to cover any earned statutory excess compensation and did cover it because they were substantially in an amount of one and one-half times the straight time rates. The District Court held that the contract straight time rates were the regular rates but the Circuit Court of Appeals for the Second Circuit held otherwise. 6

          Throughout all these proceedings the petitioners have been represented by the Department of Justice, since the United States under its cost-plus contracts with the petitioners is the real party in interest. Substantially all stevedoring during the war years was performed for the account of the United States. The Solicitor General notes that prior to the decision in the Circuit Court of Appeals, 118 suits had been instituted on behalf of longshoremen, and since that time approximately 100 new complaints have been filed. Contracts of the same general type are said to have been in effect in all our maritime areas. Witnesses testifying before the Wages and Hours Subcommittee of the House Committee on Education and Labor stated that liability of the Government under such suits would be large.7 The Wage and Hour Administrator has not filed a brief in the proceedings, but the Solicitor General has advised us that the Administrator of the Wage and Hour Division of the Department of Labor ‘believes that proper consideration was given by the court below to his interpretation of Section 7 of the Fair Labor Standards Act and that the decision below is correct.’ The Administrator and the Solicitor of the Department of Labor testified at length before the House committee as to their views on the issues presented by these cases.8 Amicus briefs have been filed by the International Longshoremens Association, the National Association of Manufacturers, and the Waterfront Employers Association of the Pacific Coast, all urging that the decision below be reversed.

          In order to fix the legal issues in their factual setting, we summarize the findings of fact made by the District Court which were accepted by the Circuit Court of Appeals and are not challenged here. Most of these findings referred to in this opinion will be found in the Appendix at 162 F.2d 670. Employment in the longshore industry has always been casual in nature. The amount of work available depends on the number of ships in port and their length of stay and is consequently highly variable and unpredictable, from day to day, week to week, and season to season. Longshoremen are hired for a specific job at the ‘shape,’9 which is normally held three times a day at each pier where work is available. The hiring stevedore selects the men he desires from the longshoremen who are present at the ‘shape'; in some instances a group of longshoremen are hired together as a gang. The work may last only for a few hours or for as long as a week. Although some work is carried on at all hours, the stevedoring companies, since operations are then carried on at less cost, attempt to do as much work as possible during the straight time hours.

          The court further found that the rate for night work and holiday work had been higher than the rate for day work since at least as far back as 1887, and that since 1916, when the first agreement was made with the International Longshoremens Association, the differential had been approximately 50%. Joseph B. Ryan, President of the Association, testified that the differential was designed to shorten the total number of hours worked and to confine the work as far as possible within the scheduled forty-four hours. Despite the differential, many longshoremen were unwilling to work at night. Although some longshore work was required at all hours, except Saturday night, the District Court found that the differential had been responsible for the high degree of concentration of longshore work to the contract straight time hours.

          The government introduced elaborate statistical studies to show the distribution of work as between the contract straight time and contract overtime hours. From 1932 to 1937, 80% of the total hours worked were within the contract straight time hours and only 2 1/2% of the total manhours were performed by men working between 5 p.m. and 8 a.m. (exclusive of Sundays and holidays) who had worked no straight time hours earlier that day. During the war, the proportion of work in contract overtime hours was considerably higher because of the greater volume of cargo had led; 55% of the total hours fell within the contract straight time hours, and the ratio of work in contract overtime hours by men who had not previously worked in the contract straight time hours was correspondingly higher. The respondents’ employment was highly irregular; in many weeks the respondents did not work at all, and in weeks in which they did work their hours of employment varied over a wide range. The trial court concluded that the ‘basic working day’ and ‘basic working week,’ 10 meaning by these phrases the contract straight time hours, were not the periods ‘normally, regularly, or usually’ worked by the respondents. Finding 45.

          In giving judgment for the petitioners, the trial court placed emphasis on the fact that the rates in question were arrived at through bona fide collective bargaining, and were more favorable to the longshoremen than the statutory mandate required. That is, that rates as high as contract straight time rates plus statutory excess compensation were paid to all workers for all work in contract overtime hours whether required by § 7(a) or not. The District Court opinion referred to Joseph B. Ryan’s statement that the International Longshoremens Association was opposed to the suit ‘as it might wipe out all of the gains we had made for our men over a period of 25 years,’11 It rejected respondents’ alternative contentions that the regular rate was to be determined by the average rate during the first forty hours or by the average rate for all hours worked. It noted that shift differentials were usually five or ten cents an hour and seldom exceeded fifteen cents and were not designed to deter the employer from working employees during the period for which the differential was paid; in the present case the trial judge found that the 50% differential was designed to deter and actually did deter work outside contract straight time hours. Accordingly the trial court concluded that the ‘collectively bargained agreement established a regular rate’ under the Fair Labor Standards Act—the contract straight time rate.69 F.Supp. 956, 958.

          The Circuit Court of Appeals held that the regular rate must be determined as an ‘actual fact’ and could not be arranged through a collective bargaining agreement, citing 149 Madison Ave. Corp. v. Asselta, 331 U.S. 199, 67 S.t . 1178, 91 L.Ed. 1432169 A.L.R. 1293. That court therefore concluded that on the basis of the findings below the regular rate must be computed by dividing the total number of hours worked into the total compensation received. The court rejected the contention that the regular rate was the average rate for the first forty hours of work, citing Walling v. Halliburton Oil Well Cementing Co., 331 U.S. 1767 S.Ct. 105691 L.Ed. 1312. The judgment of the District Court was reversed with directions to determine the amounts due plaintiffs in the light of the Portal-to-Portal Act of 1947, 61 Stat. 84. No determination of the scope or validity of that act was attempted as those matters had not been argued. 162 F.2d 673.

          On account of the importance of the method of computing the regular rate of pay in employment contracts providing for extra pay, we granted certiorari. 12 332 U.S. 81468 S.Ct. 155.

          The government adopts the view of the District Court that the contract straight time rates constituted the regular rates within the meaning of § 7(a) of the Fair Labor Standards Act. The government accepts, too, the reasoning of the District Court that the contract overtime rates, as they were coercive in the sense that they were intended to exert pressure on employers to carry on their activities in the straight time hours, were not regular rates and could be credited against required statutory excess compensation in the amount that the contract overtime rates exceeded the contract straight time rates. The government argues in the alternative that the ‘normal, non-overtime workweek,’ said to be the hours controlling the regular rate of pay, is to be determined by reference to peacetime conditions, rather than the abnormal war-time conditions, and that the statistical studies show that the work of longshoremen is sufficiently concentrated within the scheduled hours to compel the finding that the contract straight time hours are the regular working hours. The government urges also that the contract, as thus interpreted, accords with congressional purposes in enacting the Fair Labor Standards Act. It is said to reduce working hours and spread employment and to preserve the integrity of collective bargaining.

          We agree with the conclusion reached by the Circuit Court of Appeals. Later in this opinion, 334 U.S. 464, 469, 68 S.Ct. 1196, 1199, we set out our reasons for concluding that the extra pay for contract overtime hours is not an overtime premium. Where there are no overtime premium payments the rule for determining the regular rate of pay is to divide the wages actually paid by the hours actually worked in any workweek and adjudge additional payment to each individual on that basis for time in excess of forty hours worked for a single employer. Any statutory excess compensation so found is of course subject to enlargement under the provisions of § 16(b). Compare § 11 of Portal-to-Portal Act of 1947. This determination, we think, accords with the statute and the terms of the contract.

          (1) The statute, § 7(a), expresses the intention of Congress ‘to require extra pay for overtime work by those covered by the Act even though their hourly wages exceeded the statutory minimum.’ The purpose was to compensate those who labored in excess of the statutory maximum number of hours for the wear and tear of extra work and to spread employment through inducing employers to shorten hours because of the pressure of extra cost.13 The statute by its terms protects the group of employees by protecting each individual employee from overly long hours. So although only one of a thousand works more than forty hours, that one is entitled to statutory excess compensation. That excess compensation is fixed by § 7(a) at ‘one and one-half times the regular rate at which he is employed.’ The regular rate of pay of the respondents under this contract must therefore be found.

          The statute contains no definition of regular rate of pay and no rule for its determination. Contracts for pay take many forms. The rate of pay may be by the hour, by piecework, by the week, month or year, and with or without a guarantee that earnings for a period of time shall be at least a stated sum. The regular rate may vary from week to week. Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 580, 62 S.Ct. 1216, 1221; Walling v. A. H. Belo Corp., 316 U.S. 624, 632, 62 S.Ct. 1223 1227, 86 L.Ed. 1716. The employee’s hours may be regular or irregular. From all such wages the regular hourly rate must be extracted. As no authority was given any agency to establish regulations, courts must apply the statute to this situation without the benefit of binding interpretations within the scope of the Act by an administrative agency.14

          Every contract of employment, written or oral, explicitly or implicitly includes a regular rate of pay for the person employed. Walling v. A. H. Belo Corp., supra, 316 U.S. 63162 S.Ct. 1227; Walling v. Halliburton Oil Well Cementing Co., supra. We have said that ‘the words ‘regular rate’ * * * obviously mean the hourly rate actually paid for the normal, non-overtime workweek.’ Walling v. Helmerich & Payne, 323 U.S. 37, 40, 65 S.Ct. 11, 13. See United States v. Rosenwasser, 323 U.S. 360, 363, 65 S.Ct. 295, 296, 89 L.Ed. 301. ‘Wage divided by hours equals regular rate.’ Overnight Motor Transp. Co. v. Missel, supra, 316 U.S. 58062 S.Ct. 1221. ‘The regular rate by its very nature must reflect all payments which the parties have agreed shall be received regularly during the workweek, exclusive of overtime payments. It is not an arbitrary label chosen by the parties; it is an actual fact. Once the parties have decided upon the amount of wages and the mode of payment the determination of the regular rate becomes a matter of mathematical computation, the result of which is unaffected by any designation of a contrary ‘regular rate’ in the wage contracts.’ Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424, 425, 65 S.Ct. 1242 1245, 89 L.Ed. 1705. The result is an ‘actual fact.’ 149 Madison Ave. Corp. v. Asselta, supra, 331 U.S. at page 204, 67 S.Ct. at page 1181.

          In dealing with such a complex situation as wages throughout national industry, Congress necessarily had to rely upon judicial or administrative application of its standards in applying sanctions to individual situations. These standards had to be expressed in words of generality. The possible contract variations were unforeseeable. In Walling v. A. H. Belo Corp., supra, 316 U.S. at page 634, 62 S.Ct. at page 1228, this Court refrained from rigidly defining ‘regular rate’ in a guaranteed weekly wage contract that met the statutory requirements of § 7(a) for minimum compensation. In the Belo case the contract called for a regular or basic rate of pay above the statutory minimum and a guaranteed weekly wage of 60 times that amount. As the hourly rate was kept low in relation to the guaranteed wage, statutory overtime plus the contract hourly rate did not amount to the guaranteed weekly wage until after 54 1/2 hours were worked. 316 U.S. at page 628, 62 S.Ct. at page 1225. We refused to require division of the weekly wage actually paid by the hours actually worked to find the ‘regular rate’ of pay and left its determination to agreement of the parties. Where the same type of guaranteed weekly wages were involved, we have reaffirmed that decision as a narrow precedent principally because of publc reliance upon and congressional acceptance of the rule there announced. Walling v. Halliburton Oil Well Cementing Co., supra. Aside from this limitation of Belo, the case itself is not a precedent for these cases as in Belo the statutory requirements of minimum wages and statutory excess compensation were provided by the Belo contract. In these present cases no provision has been made for any statutory excess compensation and none can be earned by any respondent based on the contract overtime pay. Our assent to the Belo decision, moreover, does not imply that mere words in a contract can fix the regular rate.15 That would not be the maintenance of a flexible definition of regular rate but a refusal to apply a statutory requirement for protecting workers against excessive hours. The results on the individual of the operations under the contract must be tested by the statute.16 As Congress left the regular rate of pay undefined, we feel sure the purpose was to require judicial determination as to whether in fact an employee receives the full statutory excess compensation, rather than to impose a rule that in the absence of fraud or clear evasion employers and employees might fix a regular rate without regard to hours worked or sums actually received as pay.

          Further, we reject the argument that under the statute, an agreement reached or administered through collective bargaining is more persuasive in defining regular rate than individual contracts. Although our public policy recognizes the effectiveness of collective bargaining and encourages its use,17 nothing to our knowledge in any act authorizes us to give decisive weight to contract declarations as to the regular rate because they are the result of collective bargaining. 149 Madison Ave. Corp. v. Asselta, supra, 331 U.S. 202 and 204, 67 S.Ct. 1180, 1181; Walling v. Harnischfeger Corp., 325 U.S. 427, 432, 65 S.Ct. 1246, 1249.18 A vigorous argument is presented for petitioners by the International Longshoremens Association that a collectively obtained and administered agreement should be effective in determining the regular rate of pay19 but we think the words of and practices under the contract are the determinative factors in finding the regular rate for each individual.

          As the regular rate of pay cannot be left to a declaration by the parties as to what is to be treated as the regular rate for an employee, it must be drawn from what happens under the employment contract. We think the most reasonable conclusion is that Congress intended the regular rate of pay to be found by dividing the weekly compensation by the hours worked unless the compensation by the hours employee contains some amount that represents an overtime premium. If such overtime premium is included in the weekly pay check that must be deducted before the division. This deduction of overtime premium from the pay for the workweek results from the language of the statute. When the statute says that the employee shall receive for his excess hours one and one-half times the regular rate at which he is employed, it is clear to us that Congress intended to exclude overtime premium payments from the computation of the regular rate of pay. To permit overtime premium to enter into the computation of the regular rate would be to allow overtime premium on overtime premium—a pyramiding that Congress could not have intended. In order to avoid a similar double payment, we think that any overtime premium paid, even if for work during the first forty hours of the workweek, may be credited against any obligation to pay statutory excess compensation. These conclusions accord with those of the Administrator.20

          The definition of overtime premium thus becomes crucial in determining the regular rate of pay. We need not pause to differentiate the situations that have been described by the word ‘overtime.’21 Sometimes it is used to denote work after regular hours, sometimes work after hours fixed by contract at less than the statutory maximum hours and sometimes hours outside of a specified clock pattern without regard to whether previous work has been done, e.g., work on Sundays or holidays. It is not a word of art. See Premium Pay Provisions in Union Agreements, Monthly Labor Review, United States Department of Labor, October 1947, Vol. 65, No. 4. Overtime premium has been used in this opinion as defined in note 3. It is that extra pay for work because of previous work for a specified number of hours in the workweek or workday. It is extra pay of that kind which we think that Congress intended should be excluded from computation of regular pay. Otherwise the purpose of the statute to require payment to an employee for excess hours is expanded extravagantly by computing regular rate of pay upon a payment already made for the same purpose for which § 7(a) requires extra pay, to wit, extra pay because of excess working hours. Accordingly, statutory excess compensation paid for work in excess of forty hours should not be used to figure the regular rate. Neither should similar contract excess compensation for work because of prior work be used in such a calculation. Extra pay by contract because of longer hours than the standard fixed by the contract for the day or week has the same purpose as statutory excess compensation and must likewise be excluded.22 Under the definition, a mere higher rate paid as a job differential or as a shift differential, or for Sunday or holiday work, is not an overtime premium. It is immaterial in determining the character of the extra pay that an employee actually has worked at a lower rate earlier in the workweek prior to the receipt of the higher rate. The higher rate must be paid because of the hours previously worked for the extra pay to be an overtime premium.

          The trial court refused to accept the respondents’ contention that the contract overtime rate was a shift differential, partly because it was felt that such a holding would have a disruptive effect on national economy. 69 F.Supp. 958, 959. We use as examples three illustrations employed by the District Court to illustrate its understanding of the effect of respondents’ contentions to employment situations. That court thought these illustrations indicated additional liability from the employer under § 7(a).23 We do not agree. Our conclusions as to the trial court’s illustrations vary from those of the trial court because that court did not deduct overtime premiums, as we have defined them, actually paid from the weekly wage before dividing by the hours worked. See quotation from Walling v. Youngerman-Reynolds Hardwood Co., supra, at page 461, this opinion. (1) The employment contract calls for an overtime premium for work beyond thirty-six hours. Such extra pay should not be included as weekly wages in any computation of the regular rate at which a man works.24 (2) A contract provides for payment of time and a half for work in excess of eight hours in a single workday. An employee who works five ten-hour days would have no claim for statutory excess compensation if paid the amount due by the contract.25 Or (3) a contract provides for a rate of $1 an hour for the first 40 hours and $1.50 for all excess hours; an employee works 48 hours and receives $52. To find his regular rate of employment, the overtime premium of $4 should be deducted and the resulting sum divided by 48 hours.26 On the other hand, a man might be employed as a night watchman on an eight-hour shift at time and a half the wage rate of day watchmen. This would be extra pay for undesirable hours. It is a shift differential. It would not be overtime premium pay but would be included in the computation for determining overtime premium for any excess hours.27

          Where an employee receives a higher wage or rate because of undesirable hours or disagreeable work, such wage represents a shift differential or higher wages because of the character of work done or the time at which he is required to labor rather than an overtime premium.28Such payments enter into the determination of the regular rate of pay. See Cabunac v. National Terminals Corp., 7 Cir., 139 F.2d 853.

          The trial court seemed to assume that if the contract overtime rate were a shift differential, the employee who worked on a higher paid shift would be entitled to have his higher shift rates enter into the computation of regular rate of pay. One of the reasons for not allowing the contract overtime rates in the computation of regular rate of pay was that it thought the great difference between the contract straight time and contract overtime rates showed that the premium paid by contract was not a shift differential but a true overtime premium. In this we think the trial court erred. The size of the shift differential cannot change the fact that large wages were paid for work in undesirable hours. It i like a differential for dangerous work. This contract called for $2.50 straight time hourly rate for handling explosives. The statutory excess compensation would, of course, be $3.75 per hour. If an employee receives from his employer a high hourly rate of pay for hard or disagreeable duty, he is entitled to the statutory excess compensation figured on his actual pay.

          Nor do we find the District Court’s reliance upon the fact that the overtime rates were employed in order to concentrate the work of the longshoremen in the straight time hours relevant to a determination of the respondents’ rate of pay. The District Court thought the concentration was significant. It did not test whether the contract overtime rates contained overtime premium payments by considering whether the employee actually received extra compensation for excess hours. We accept the District Court’s holding that this concentration was an intended effect of the overtime rates and that the higher rates did contribute to the concentration of the work in the straight time hours as set out in a preceding paragraph of this opinion. 68 S.Ct. 1192 supra. Such a concentration tends, in some respects, to the employment of more men, as there is pressure for more work to be done in the straight time hours. Overnight Motor Transp. Co. v. Missel, supra, 316 U.S. 57862 S.Ct. 1220. However, the pressure of the contract overtime wages is not solely toward a spread of employment. Since work is in fact done outside straight time hours, the employer can use men who have previously worked in straight time hours in contract overtime hours without additional cost.

          But spread of employment is not the sole purpose of the forty-hour maximum provision of § 7(a). Its purpose is also to compensate an employee in a specific manner for the strain of working longer than forty hours. Overnight Motor Transp. Co. v. Missel, supra, 316 U.S. 57862 S.Ct. 1220. The statute commands that an employee receive time and one-half his regular rate of pay for statutory excess compensation. The contract here in question fails to give that compensation to an employee who works all or part of his time in the less desirable contract overtime hours. Looked at from the individual standpoint of respondents, the concentration of work does not have any effect upon their regular rate of pay. Because of this defect, the concentration of work brought about by the contract has no effect in the determination of the regular rate of pay. As we indicated at the beginning of this subdivision (1) a major purpose of the statute was to compensate an employee by extra pay for work done in excess of the statutory maximum hours. Thus the burdens of overly long hours are balanced by the pay of time and a half for the excess hours.

          We therefore hold that overtime premium, deductible from extra pay to find the regular rate of pay, is any additional sum received by an employee for work because of previous work for a specified number of hours in the workweek or workday whether the hours are specified by contract or statute.29

          (2) Since under Interpretative Bulletin No. 4, § 69, the Administrator refers to regular working hours as important in calculating the regular rate of pay under s 7(a) of the Act, a word must be said as to regular working hours in this case.30 ‘Regular working hours’ apparently has not been defined by the Administrator. He could hardly have intended in § 69 to employ the statutory maximum hours as synonymous with regular working hours as there is no prohibition on regular working hours that are longer than the statutory maximum. His illustrations, numbers 2 and 3, show that overtime premiums may be earned within the first 40 hours of a workweek. The statutory maximum hours are significant only as requiring overtime premium pay. An employer may increase pay or decrease hours free as to those steps from statutory regulation. See article in Monthly Labor Review, supra. The trial court pointed out that ‘The identifying mark of the case at bar is the absence of any norm, any regularity. Both parties have emphasized the casual, irregular character of the employment.’ 69 F.Supp. 959, 960. The trial court, as we have heretofore stated, 334 U.S. 45568 S.Ct. 1192, also found that the ‘basic working day,’ defined by § 2(a) of the agreement set forth in note 5, supra, was not the day normally, regularly or usually worked by respondents. Indeed the contract, § 1, required these round-the-clock irregular hours from some individuals. We call attention to the problem only to lay it aside as inapplicable in this case.

          However, the government contends in this case that regular working hours are important, that the contract fixed regular working hours as the straight time hours and that as an actual fact as shown by the statistics of concentration of work in straight time hours, 334 U.S. 45668 S.Ct. 1192 supra, the straight time hours were the regular working hours of all longshoremen. The government concludes from this that the contract straight time pay is the regular rate of pay and the contract overtime pay includes a true overtime premium. We may be mistaken in thus limiting the government’s argument on this point. If the government means that any extra pay to an employee for work outside regular working hours of the group of employees is to be excluded from the computation of the regular rate, we do not think that contention sound. The defect in this argument, however the government’s position is construed, is that it treats of the entire group of longshoremen instead of the individual workmen, respondents here. The straight time hours can be the regular working hours only to those who work in those hours. The work schedule of other individuals in the same general employment is of no importance in determining regular working hours of a single individual. As a matter of fact, rg ular working hours under a contract, even for an individual, has no significance in determining the rate of pay under the statute. It is not important whether pay is earned for work outside of regular working hours. The time when work is done does not control whether or not all or a part of the pay for that work is to be considered as a part of the regular pay.

          We think, therefore, that this case presents no problems that involve determination of the regular hours of work. As an employment contract for irregular hours the rule of dividing the weekly wage by the number of hours worked to find the regular rate of pay would apply. Cf. Overnight Motor Transp. Co. v. Missel, supra, 316 U.S. at page 580, 62 S.Ct. at page 1221.

          (3) The contract was interpreted by the Shipping Association and the Longshoremens Association as providing that the contract straight time was the regular rate. The parties to the contract indicated by their conduct that the contract overtime was the statutory excess compensation or an overtime premium. Finding 43, 162 F.2d at page 672; see note 33 infra.31 Apparently no dispute or controversy arose over this interpretation although the contract, § 19, made provision for the resolution of such disagreements. The trial court determined that the straight time hourly rate was the regular rate at which respondents were employed.32 This construction by the parties and the court’s conclusion, supported by evidence, leads us to consider this agreement as though there was a paragraph which read to the effect that the straight time rate is the regular rate of pay. We should also consider that the contract provided that the contract overtime rates were intended to provide any statutory excess compensation, when men worked more than forty hours except in those situations where the entire time, including the excess, was in the straight time hours.33 This of course does not mean that respondents here were familiar with these purposes of the agreement. So far as the record shows, they worked for the pay promised under the words of the contract. It shows nothing more on this point.

          Under the contract we are examining, the respondents’ work in overtime hours was performed without any relation as to whether they had or had not worked before. Under our view of § 7(a)’s requirements their high pay was not because they had previously worked but because of the disagreeable hours they were called to labor or because the contracting parties wished to compress the regular working days into the straight time hours as much as possible. As heretofore pointed out, we need not determine what were the regular working hours of these respondents. If it were important, the trial court determined that their regular working hours were not the straight time hours. They worked at irregular times. Finding 45, 162 F.2d at page 672. The record shows that all respondents worked 5,201 straightt ime hours and 20,771 overtime hours. Four of the twenty respondents worked no straight time hours. Five others worked less than 100 straight time hours. Three worked more straight time than overtime. The record does not show the hours these respondents worked for other employers. That fact is immaterial in this case as respondents seek recovery only from petitioner employers. These round-the-clock hours were in strict accordance with the contract which allowed the Longshoremens Association to furnish all men needed and called for the men to ‘work any night of the week, or on Sundays, holidays or Saturday afternoons when required.’ §§ 1 and 2; see note 5. Men who worked contract overtime hours were entitled to contract overtime pay. They were given no overtime premium pay because of long hours. It is immaterial that his regular rate may greatly exceed the statutory minimum rate. This contract overtime rate, therefore, did not meet the excess pay requirements of § 7.

          In finding the statutory excess compensation due respondents, the trial court must determine the method of computation. Each respondent is entitled to receive compensation for his hours worked in excess of forty at one and a half times his regular rate, computed as the weighted average of the rates worked during the week. In computing the amount to be paid, the petitioners may credit against the obligation to pay statutory excess compensation the amount already paid to each respondent which is allocable to work in those excess hours. The precise method for computing this credit presents the difficulty. According to the Administrator’s interpretation, an employer may credit himself with an amount equal to the number of hours worked in excess of forty multiplied by the regular rate of pay for the entire week rather than an amount equal to the number of hours worked in excess of forty multiplied by the average rate of pay for those excess hours.34 Under that formula each respondent is entitled, as statutory excess compensation, to an additional sum equal to the number of hours worked for one employer in a workweek in excess of forty, multiplied by one-half the regular rate of pay. On the record before us, that interpretation seems to be a reasonable one; we leave a final determination of the point to the District Court on further proceedings.

          The Circuit Court ordered the case remanded to the District Court for determination of the amounts due respondents in accordance with its opinion. Bya further order, it allowed the District Court to consider any matters presented to it by petitioners as a defense in whole or in part under the Portal to Portal Act. We modify these orders so as to permit the District Court to allow any amendments to the complaint or answer or any further evidence that the District Court may consider just.

          As so modified the judgment of the Circuit Court of Appeals is affirmed.

          Modified and affirmed.

          Mr. Justice DOUGLAS took no part in the consideration or decision of this case.

           Mr. Justice FRANKFURTER, with whom Mr. Justice JACKSON and Mr. Justice BURTON concur, dissenting.

          No time is a good time needlessly to sap the principle of collective bargaining or to disturb harmonious and fruitful relations between employers and employees brought about by collective bargaining. The judgment of Congress upon another doctrinaire construction by this Court of the Fair Labor Standards Act ought to admonish against an application of that Act in disregard of industrial realities. Promptly after the Eightieth Congress convened, Congress proceeded to undo the disastrous decisions of this Court in the so-called portal-to-portal cases. Within less than a year of the decision in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 68066 S.Ct. 118790 L.Ed. 1515, both Houses, by overwhelming votes that cut across party lines, passed and the President signed, the Portal-to-Portal Act of 1947. What is most pertinent to the immediate problem before us is the fact that because the Fair Labor Standards Act had been ‘interpreted judicially in disregard of long-established customs, practices, and contracts between employers and employees,’ Congress had to undo such judicial misconstruction because it found that ‘voluntary collective bargaining would be interfered with and industrial disputes between employees and employers and between employees and employees would be created.’ 1 Because the present decision is heedless of a long-standing and socially desirable collective agreement and is calculated to foster disputes in an industry which has been happily at peace for more than thirty years. I deem it necessary to set forth the grounds of my dissent.

          The Court’s opinion is written quite in the abstract. It treats the words of the Fair Labor Standards Act as though they were parts of a cross-word puzzle. They are, of course, the means by which Congress sought to eliminate specific industrial abuses. The Court deals with these words of Congress as though they were unrelated to the facts of industrial life, particularly the facts pertaining to the longshoremen’s industry in New York. The Court’s opinion could equally well have been written had the history of that industry up to 1916 not been an anarchic exploitation of the necessities of casual labor for want of a strong union to secure through equality of bargaining power fair terms of employment. See, e.g., Barnes, The Longshoremen (1915), passim. Through such bargaining power the agreement was secured which the Court now upsets. Through this agreement, the rights and duties of the industry—the members of the union on the one hand and the employers on the other hand—were defined, and the interests of the men, the employers, and, not least, the community were to be adjusted in a rational and civilized way. On behalf of a few dissident members of the union, but against the protests of the union and of the employers and of the Government, the Court dislocates this arrangement and it does so by what it conceives to be the compulsions of § 7(a) of the Fair Labor Standards Act.2 This is to attribute destructive potency to two simple English words—’regular rate’—far beyond what they deserve.

          Employment of longshoremen has traditionally been precarious because dependent on weather, trade conditions, and other unpredictables. Decasualization of their work has been their prime objective for at least sixty years. They have sought to achieve this result by inducing concentration of work during weekday daytime hours.

          One of the strongest influences to this end is to make it economically desirable. And so the union has sought and achieved an addition to the basic—the regular—rate sufficiently high to deter employers from assigning work outside of defined periods, except in emergencies. Since 1916, when the International Longshoremens Association made its first collective agreement with waterfront employers in New York, a 50% premium on night and weekend work has generally prevailed. In the industry, this has been colloquially called ‘overtime’ pay.

          Longshoremen do not usually work continuously for one employer, but shift from one to another, wherever employment can be found. The Fair Labor Standards Act does not entitle an employee who works a total of over forty hours per week for several employers, but not more than forty hours for any one of them, to any overtime pay. In view of the peculiarities of this industry, therefore, the only effective way of promoting the aim of the Fair Labor Standards Act, to deter a long workweek, is that devised by the collective agreement, namely, to limit to approximately the statutory maximum of hours the total length of the periods in the week for which additional pay amounting to overtime rates need not be paid, regardless of the employer for whom the work is done.

          During the period (1943—45) in controversy, the wage rates were governed by the 1943 General Cargo Agreement between the International Longshoremens Association and the employers at the Port of New York. Under its terms, the ‘basic working week,’ for which ‘straight time’ hourly rates were paid, included the hours of 8 a.m. to noon, and 1 p.m. to 5 p.m., Monday through Friday. and 8 a.m. to noon on Saturday.3 ‘Overtime’ rates, for ‘all other time,’ were in almost all instances4 150% of the ‘straight time’ rates. The 1943 Agreement embodied the practice of the industry since 1916, whereby approximately 150% of ‘straight time’ rates was paid for night and weekend work. Through the years, with successive renewals of agreements between the International Longshoremens Association and the employers, the rates of pay have risen and the length of the ‘basic working week’ has decreased. The respondents, members of the International Longshoremens Association, did a large part of their work for the petitioners outside of the enumerated ‘straight time’ hours. In accordance with the collective agreement, they received, for whatever work they did during the ‘basic working week,’ ‘straight time’ pay, and for work at all other times, ‘overtime’ pay, drawing such ‘overtime’ pay regardless of whether such work was or was not part of their first forty hours of work in the week.5 They instituted this action, for double damages under § 16(b) of the Fair Labor Standards Act, 52 Stat. 1060, 1069, 29 U.S.C. § 216(b), 29 U.S.C.A. § 216(b), assert-

Page 482

ing that night and weekend work had been so frequent an incident of their employment that the contractual ‘straight time’ pay could not be deemed their ‘regular rate’ of pay, under § 7(a), but that their ‘regular rate’ was the average of what they received for all their work for any one employer, ‘straight time’ and ‘overtime’ together. On this theory, rejected by the union, the employers, and the Government, but now accepted by the Court, all work beyond forty hours per week for any one employer should have been paid for at one and one-half times this average.

          The statutory phrase ‘regular rate’ is not a technical term. Thirteen expressions used in the Fair Labor Standards Act were defined by Congress in § 3. ‘Regular rate’ was left undefined. The legislative history of the phrase reveals only that it replaced ‘agreed wage’ in an earlier draft, but there is no indication that this modification had significance. Nor is there any indication that in the field of labor relations, ‘regular rate’ was a technical term meaning the arithmetic average of wages in any one week. If ordinary English words are not legislatively defined, they may rightly be used by the parties to whom they are addressed to mean what the parties through long usage have understood them to mean, when the words can bear such meaning without doing violence to English speech. The ‘regular rate’ can therefore be established by the parties to a labor agreement, provided only that the rate so established truly reflects the nature of the agreement and is not a subterfuge to circumvent the policy of the statute. Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424, 65 S.Ct. 1242, 1244. Thus the problem before us is whether the designation of ‘straight time rates’ for the ‘basic working week’ in the longshoremen’s collective agreement was an honest reflection of the distinctive conditions of this industry.

          We are not concerned with an abstract ‘regular rate’ of pay, for industry is not. The ‘regular rate’ in a given industry must be interpreted in the light of the customs and practices of that industry. The distinctive conditions of the longshoremen’s trade, where employees frequently work during one week for several different employers, are reflected in the provisions which the industry has made in determining rates of compensation. These provisions were designed to secure for longshoremen protection not only from harmful practices common to many industries and dealt with specifically by the statute, but also from those peculiar to the longshoremen’s industry, requiring special treatment.

          The respondents’ wages, as part of a comprehensive arrangement for the betterment of the longshoremen’s trade—also covering health and sanitary provisions, minimum number of men in a gang doing specified types of work, ‘shaping time,’ minimum hours of employment for those chosen at a ‘shape,’ arbitration, etc.—were determined by a collective agreement entered into between the union and the employers. The Fair Labor Standards Act was ‘intended to aid and not supplant the efforts of American wr kers to improve their own position by self-organization and collective bargaining.’ H.Rep.No. 1452, 75th Cong., 1st Sess., p. 9. ‘The right of individual or collective employees to bargain with their employers concerning wages and hours is recognized and encouraged by this bill. It is not intended that this law shall invade the right of employer and employee to fix their own contracts of employment, wherever there can be any real, genuine bargaining between them. It is only those low-wage and long-working-hour industrial workers, who are the helpless victims of their own bargaining weakness, that this bill seeks to assist to obtain a minimum wage.’ Sen.Rep.No. 884, 75th Cong., 1st Sess., pp. 3—4.6 Such assurances were necessary to allay the traditional hostility of organized labor to legislative wage-fixing. The Court now holds unlawful a collective agreement entered into by a strong union, governing the wide range of the longshoremen’s employment relationships, and especially designed to restrict the hours of work and to require the same premium as that given by the statute for work done outside of normal hours but within the statutory limit. The Court substitutes an arrangement rejected both by the union and the employers as inimical to the needs of their industry and subversive of the process of collective bargaining under which the industry has been carried on. But, we are told, these untoward consequences are compelled by a mere reading of what Congress has written.

          On the question you ask depends the answer you get. If the problem is conceived of merely as a matter of arithmetic you get an arithmetical answer. If the problem is put in the context of the industry to which it relates, and meaning is derived from an understanding of the problems of the industrial community of which this is just one aspect, a totally different set of considerations must be respected. The defendants derived their rights from the entire agreement and not from a part mutilated by isolation. If the parties had written out with unambiguous explicitness that the extra wage in the scheduled periods is to be deemed a deterrent against work during those periods and is not to be deemed a basis for calculating time and a half after the forty hours, I cannot believe that this Court would say that such an agreement, made in palpable good faith, is outlawed by the Fair Labor Standards Act.

          How is compensation for services above the limits set by the Act to be reckoned? The standard for compensation could be determined (1) by specific statutory terms; (2) by collective agreement; or (3) by judicial construction in default of either.

          Congress could have laid down a hard and fast rule, could have expressed a purely arithmetic formula. It could have said that the rate on which time and a half is to be reckoned is to be found by dividing the total wage by the hours worked. It would not even have been necessary to spell all this out. Congress could have conveyed its thought by using the phrase ‘average’ instead of ‘regular.’ And where we have nothing else to go on, except the total wage and the hours, it is reasonable enough thus to ascertain the regular rate. But when parties to a complicated industrial agreement, with full understanding of details not peculiarly within the competence of judges, indicate what the regular rt e is for purposes of contingencies and adjustments satisfied otherwise than by a purely arithmetic determination of the rate of wages, nothing in the history of the law or its language precludes such desirable consensual arrangements, provided, of course, that the parties deal at arms length, and that the defined ‘regular’ rate is not an artifice for circumventing the plain commands of the law. Such an artifice would obviously not be used in a contract made by workers in their own interests represented by a union strong enough to pursue those interests. Regularity in this context implies of course a controlling norm for determining wages which, though agreed upon between the parties, is consistent with, and not hostile to, the underlying aims of the overtime provision of the Fair Labor Standards Act. Discouragement of overwork and of underemployment are the aims. The longshoremen’s collective agreement serves the same purpose as does the statute.

          The Fair Labor Standards Act is not a legislative code for the government of industry. It sets a few minimum standards, leaving the main features in the employment relation for voluntary arrangement between the parties. Where strong unions exist relatively little of the employment relation was to be enforced by law. Most of it was left to be regulated by free choice and usage as expressed and understood by the unions and employers. Congress did not provide for increase in basic rates except to the limited extent of establishing minimum wages. The inclusion of such minimum wages is in itself a recognition by Congress of the distinction between what it sought to change and what it sought to use only as the basis for the computation of an overtime percentage.

          The claim of the few members in opposition to the union is predicated upon an amount superadded for reasons peculiar to the stevedoring industry to the wage which the parties to the agreement in perfect good faith established as the regular rate. The union members secured this extra wage as part of the entire scheme of the collective agreement.7 This premium is not to be detached from the scheme as though it were a rate fixed by law as a basis for calculating the statute’s narrowly limited overtime provision. So long as its minimum wage provisions were complied with, the statute did not seek to change the true basic or ‘regular’ rate of pay in any industry, from which rate all statutory overtime is to be computed. There is no justification for interpreting the statutory term as including elements clearly understood in the industry to be as foreign to the ‘regular rate’ as any strictly overtime rates. Here the extra wage is the industry’s overtime rate for work which might not be within the overtime period of the Fair Labor Standards Act, but was within the schedule of the collective agreement for extra wages, not because the work was overtime in the ordinary industrial sense but because it was at periods during which all work was sought to be discouraged by making it costly. Because the union secured for its men an extra wage even for not more than forty working hours, the scope of the Fair Labor Standards Act as to overtime is not enlarged. Only for a work-week longer than forty hours is an employee to be paid one and a half times ‘the regular rate,’ and nothing in the Act precludes agreement between the parties as to what the regular rate should be, provided such agreement is reached in good faith and as a fair bargain. The presupposition of the Act was that voluntary arrangements through collective bargaining should cover an area much wider, and economically more advantageous, than the minimum standards fixed by the Act. The traditional process of collective bargaining was not to be disturbed where it existed. It was to be extended by advancing the economic position of workers in non-unionized industries and in industries where unions were weak, by furthering equality in bargaining power It certainly was not the purpose of the Act to permit te weakening of a strong union by eviscerating judicial construction of the terms of a collective agreement contrary to the meaning under which the industry had long been operating and for which the union is earnestly contending.

          There can be no quarrel with the generality that merely because the conditions of employment are arrived at through collective bargaining an arrangement which violates the statute need not be upheld. But this does not mean that in determining whether the contractual designation of certain hours as ‘basic’ is honest and fair, we cannot consider the fact that the contract was one entered into by a powerful union, familiar with the needs of its members and the peculiar conditions of the industry, and fully equipped to safeguard its membership. To view such a contract with a hostile eye is scarcely to carry out the purpose of Congress in enacting the Fair Labor Standards Act.

          The Court has sustained the power of ‘employer and employee * * * to establish (the) regular rate at any point and in any manner they see fit,’ Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424, 65 S.Ct. 1242, 1245, provided that the regular rate is not computed ‘in a wholly unrealistic and artificial manner so as to negate the statutory purposes.’ Walling v. Helmerich & Payne, 323 U.S. 37, 42, 65 S.Ct. 11. If we were confronted with an agreement which did not reflect the true practice in the industry, if despite the designation of certain hours as ‘basic’ and others as ‘overtime,’ the distinction was not actually observed, but work was done at all times indiscriminately, so that what the contract designated as ‘overtime’ pay was in reality a ‘shift differential,’ designed to induce employees to work at less pleasant hours, rather than to deter employers from carrying on at such hours, the labels attached by the parties to the various periods of work would not be allowed to conceal the true facts. We have again and again pierced through such deceptive forms. See, e.g., Walling v. Helmerich & Payne, 323 U.S. 3765 S.Ct. 1189 L.Ed. 29Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 41965 S.Ct. 124289 L.Ed. 1705Walling v. Harnischfeger Corp., 325 U.S. 42765 S.Ct. 124689 L.Ed. 1711. 149 Madison Ave. Corp. v. Asselta, 331 U.S. 19967 S.Ct. 117891 L.Ed. 1432169 A.L.R. 1293. But here there is no suggestion that the agreement mislabeled the true circumstances of the employment relationship. And it is significant that in no case in which we found that the terms used had distorted the true facts did a union which had made the contract appear to defend it.

          The fact that some work was done at odd hours does not misrepresent the regular situation, provided that such work was exceptional and was restricted in frequency by the overtime provisions of the agreement, so that what the agreement treated as regular and what as exceptional were truly just that. We turn then to the actual experience, in representative periods, of the Port of New York longshoremen. The stipulations, exhibits, and findings of the District Court, all demonstrate the exceptional nature of ‘overtime’ work.8 It is also apparent that such night work as was done was usually done in addition to, rather than instead of, daytime work. The increased compensation for such work therefore served principally to achieve the same result as did the statute namely, to afford a higher rate of compensation for long hours. In peacetime, night work was extremely rate for any one as a recurring experience, and even during the exigencies of war only a small minority was principally so occupied.

          The accuracy of the designation of one period or amount of work as ‘basic’ is not contradicted by the fact that some work may have been done at other times as well. They very reference in any collective agreement to overtime pay for unusual hours implies that some such work is anticipated. A protective tariff need not be so high as to exclude every last item. The statistics in the margin amply justify the trial judge’s conclusion that the designations in the collective agreement were not unreal or artificial when the agreement was entered into, and did not become so even at the height of the abnormal wartime effort.

          Of course, even if most of the work of longshoremen was performed during ‘straight time’ hours, if the 50% increment for work at other times was not a true overtime payment, but a shift differential, this higher rate of pay would have to be taken into account in establishing the ‘regular rate’ of the respondents. But the District Court found that this premium constituted true overtime. As that court stated (Finding 28), a shift differential ‘is an amount added to the normal rate of compensation, which is large enough to attract workers to work during what are regarded as less desirable hours of the day, and yet not so large as to inhibit an employer from the use of multiple shifts,’ while a true overtime premium ‘is an addition to the normal rate of compensation, designed to inhibit or discourage an employer from using his employees beyond a specified number of hours during the week of during certain specified hours of the day. A safe guide for distinguishing between the shift differential and the overtime premium is by the degree of spread between the normal rate and the penalty rate. Whereas a shift differential is usually 5 or 10 cents per hour, the overtime premium is generally 50% of the normal rate.’

          These findings of the District Court are amply supported by the testimony and by industrial statistics. See 65 Monthly Labor Review 183—85; Wage Structure; Machinery (Bureau of Labor Statistics 1945) p. 21; id. (1946) p. 38; Wage Structure: Foundries (Bureau of Labor Statistics 1945) Tables 32, 33; id. (1946) pp. 44—45. And compare the Directives of the Economic Stabilization Director dated March 8, 1945, and April 24, 1945, limiting the shift differentials which the National War Labor Board could approve to four cents per hour for the second shift and six or eight cents per hour for the third. CCH Labor Law Service, vol. 1A, 10,034.11, 10,462. Applying the test based on Finding 28, and finding also that the differential had in fact served to deter night and week-end work, the District Court held that the fifty per cent increment was true overtime and not a shift differential.

          The Court purports to accept the findings of the District Court, and yet it concludes that the District Court erred in finding that the fifty per cent was by way of overtime and not a shift differential. The District Court, to be sure, and not explicitly state that the premium was not a shift differential in one of its formal Findings of Fact. It did so state, however, in its opinion and this conclusion depended on the statements quoted above from Finding 28 as to the characteristics indicativeo f true overtime and shift differentials. I fail to see how this Court can accept Finding 28 and reject the conclusion that the contractual ‘overtime’ was not a shift differential.

          Findings of lower courts are to be disregarded only if not substantiated by the evidence. Here, the evidence supporting the finding was impressive, and yet the Court strains to overturn it to reach a result not urged as socially desirable but only as demanded by legal dialectic.9

          The Court holds that even if the collective agreement accurately designated that regular and overtime work of the generality of longshoremen, it cannot apply to the respondents, because of their particular working hours for a stretch of the wartime period here in controversy. This contention expresses an attitude toward the process of collective bargaining which, if accepted, would undermine its efficacy. It subjects the collective agreement to the hazards of self-serving individualism, which must inevitably weaken the force of such agreements for improving the conditions of labor and forwarding industrial peace. Here, the very increased rates of pay which the respondents received for exceptional right and weekend work was the result of the contract which they now seek to disavow.

          Collective bargaining between powerful combinations of employers and employees in an entire industry, each group conscious of what it seeks and having not merely responsibility for its membership but resourceful experience in discharging it, is a form of industrial government whereby self-imposed law supplants force. Cf. Feis, The Settlement of Wage Disputes (1921) c. II. This is an accurate description of the process by which the stevedoring industry has served the greatest port in the United States. Yet the Court rejects the meaning which the parties to the agreement have given it and says it means what the parties reject. Often, too often, industrial strife is engendered by conflicting views between employers and employees as to the meaning of a collective agreement. Here the industry as an entirety—the union and the employers’ association—is in complete accord on the meaning of the terms under which the industry has lived for thirty years and under which alone, the parties to the agreement insist, they can continue to live peacefully. But a few members of the union assert an interest different from that of their fellows—some thirty thousand—and urge their private meaning even though this carries potential dislocation to the very agreement to which they appeal for their rights. Unless it be judicially established that union officers do not know their responsibility or have betrayed it, so that what appears to be a contract on behalf of their men is mere pretense in that it does not express the true interests of the union as an entirely, this Court had better let the union speak for its members and represent their welfare, instead of reconstructing, and thereby jeopardizing, arrangements under which the union has lived and thrived and by which it wishes to abide.10

          Collective agreements play too valuable a part in the government of industrial relationships to be cast aside at the whim of a few union members who seek to retain their benefits but wish to disavow what they regard as their burdens. Unless the collective agreement is held to determine the incidents of the employment of the entirety for whom it was secured, it ceases to play its great role as an instrument of industrial democracy. Cf. Rice, Collective Labor Agreements in American Law, 44 Harv.L.Rev. 572; Wolf, The Enforcement of Collective Labor Agreements: A proposal, 5 Law & Contemp.Prob. 273; Hamilton, Collective Bargaining, 3 Encyc.Soc.Sci. 628, 630.

          But furthermore, as I read the Court’s opinion, it is not limited in application to those employees most or all of whose work was done at night, but extends equally to those work worked chiefly during the ‘basic working week,’ but also did a few hours of work at other times. Even where a longshoreman worked precisely forty hours of ‘straight time,’ followed by a few hours of ‘overtime’ in the same week, payment of the appropriate wages as determined by the collectibe agreement would not satisfy the Court’s test that only such extra pay as is given ‘for work because of previous work for a specified number of hours in the workday or workweek’11 can be regarded as true overtime pay. To require specification in an industry where the only thing certain is uncertainty is to command the impossible. There is no justification for such a test in the statute, its history, industrial practice, judicial decision, or administrative interpretations.12

          In short, this is not a decision that where the predominant work of an employee is paid for at ‘overtime’ rates, such rates enter into computation of the ‘regular rate,’ but rather that where the conditions in an industry are such that the number of ‘straight time’ hours cannot be precisely predicted in advance, an arrangement for time and a half for all other hours cannot be legal, regardless of how unusual work outside of the ‘straight time’ hours may be.

          But whether or not the Court means to go as fas as it seems to go, and even if its holding is later limited to the narrow situation now before us, I cannot agree with its conclusion. It seems to me that the ‘regular rate’ of pay for Port of New York longshoremen was the ‘straight time’ scale provided for by the union contract, and that this was true for the whole union, including the individual respondents. Far from receiving less overtime than the statute required, the respondents were, through the agreement, the recipients of much more. To call their demand one for ‘overtime pyramided on overtime’ is not to use a clever catchphrase, but to describe fairly the true nature of their claim.

          I would reinstate the judgments of the District Court.

1 52 Stat. 1060, 1063, approved June 25, 1938, 29 U.S.C.A. § 201 et seq.; § 7(a) took effect 120 days later, § 7(d). No problem as to the length of time any employee worked is presented. See Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 59064 S.Ct. 69888 L.Ed. 949152 A.L.R. 1014Anderson v. Mt. Clemens Pottery Co., 328 U.S. 68066 S.Ct. 118790 L.Ed. 1515. Portal-to-Portal Act of 1947, 61 Stat. 84, 29 U.S.C.A. § 251 et seq.

2 The use of the word ‘overtime’ in the contract does not decide this case. The problem for solution is whether rates described as ‘overtime’ by the contract actually are such rates as § 7(a) provides for statutory excess hours.

As will hereafter appear, we consider the contract as intending to provide statutory excess compensation and overtime premium. Consequently, we accept the word ‘overtime’ used in the contract to describe one wage scale as having been intended by the parties to the contract to satisfy fully the requirements of § 7(a).

3 The following phrases are used in this opinion with the following meaning. These definitions do not apply to quotations.

Extra pay.—Any increased differential from a lower pay scale for work after a certain number of hours in a workday or workweek or for work at specified hours.

Overtime premium.—Extra pay for work because of previous work for a specified number of hours in the workweek or workday whether the hours are specified by contract or statute.

Statutory excess compensation.—Additional compensation required to be paid by § 7(a), F.L.S.A.

Regular rate of pay.—Total compensation for hours worked during any workweek less overtime premium divided by total number of hours worked.

The following definitions apply to the circumstances of this conr act only:

Contract straight time.—Compensation paid under the longshoring contract for work during the hours defined in par. 3(a) of the contract, as follows: 8 a.m. to 12 noon and from 1 p.m. to 5 p.m., Monday to Friday, inclusive, and from 8 a.m. to 12 noon Saturday.

Contract overtime.—Additional compensation which the contract requires shall be paid for work on legal holidays and for work at hours other than those specified in par. 3(a).

4 52 Stat. 1069, § 16, 29 U.S.C.A. § 216: ‘(b) Any employer who violates the provisions of section 6 or section 7 of this Act shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. * * * The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.’

5 The Agreement contains the following provisions with respect to the hours of work and scale of wages:

I. General Cargo Agreement.

‘1. Members of the party of the second part shall have all of the work pertaining to the rigging up of ships and the coaling of same, and the discharging and loading of all cargoes including mail, ships’ stores and baggage. When the party of the second part cannot furnish a sufficient number of men to perform the work in a satisfactory manner, then the party of the first part may employ such other men as are available.

‘2. (a) The basic working day shall consist of 8 hours, and the basic working week shall consist of 44 hours. Men shall work any night of the week, or on Sundays, Holidays, or Saturday afternoons, when required. On Saturday night, work shall be performed only to finish a ship for sailing on Sunday, or to handle mail or baggage.

‘(b) Meal hours shall be form 6 A.M. to 7 A.M., from 12 Noon to 1 P.M., from 6 P.M. to 7 P.M., and from 12 midnight to 1 A.M.

‘(c) Legal Holidays shall be: New Year’s Day, Lincoln’s Birthday, Washington’s Birthday, Good Friday on the New Jersey Shore, Decoration Day, Fourth of July, Labor Day, Columbus Day, Election Day, Armistice Day, Thanksgiving, Christmas, and such other National or State Holidays as may be proclaimed by Executive authority.

‘3. (a) Straight time rate shall be paid for any work performed from 8 A.M. to 12 Noon and from 1 P.M. to 5 P.M., Monday to Friday, inclusive, and from 8 A.M. to 12 Noon Saturday.

‘(b) All other time, including meal hours and the Legal Holidays specified herein, shall be coni dered overtime and shall be paid for at the overtime rate.

‘(c) The full meal hour rate shall be paid if any part of the meal hour is worked and shall continue to apply until the men are relieved.

‘4. Wage Scale: The wage scale shall be as follows:

6 Addison v. Huron Stevedoring Corp., 69 F.Supp. 956Aaron v. Bay Ridge Operating Co., 162 F.2d 665.

7 Mr. Walter E. Maloney, representing the National Federation of American Shipping, testified that liability to the Government on stevedoring contracts might run as high as $260,000,000, although he admitted that the amount of liability was ‘almost impossible to calculate.’ Hearings before Subcommittee No. 4 of the House Committee on Education and Labor, 80th Cong., 1st Sess., pp. 1198—1205. Committee members referred to the amounts in question as $236,000,000, $340,000,000, and $300,000,000. Hearings, supra, pp. 1203, 2283, 2469. The basis for such figures does not appear. Nor is it made clear whether the Portal-to-Portal Act was in mind. 61 Stat. 84, Pt. IV, §§ 9 and 11, 29 U.S.C.A. §§ 258, 260.

The International Longshoremens Association claims to have approi mately 80,000 members in United States and Canada. Thirty thousand are said to work in the Port of New York, and the terms adopted in the New York contract are generally followed in other ports. The Waterfront Employers Association of the Pacific Coast states that 20,000 stevedores are covered by 21 collective bargaining contracts, of which 3 are with the International Longshoremen’s and Warehousemen’s Union. The current New York contract with the I.L.A. and the 21 agreements between the Pacific Association and the I.L.A. and I.L.W.U. are said to contain clauses permitting cancellation if the courts sustain the claims of plaintiffs in this suit.

8 Hearings, supra, note 7, 2467—2471; 2474—2482; 2736—2762.

9 The trial court gave the following explanation of the ‘shape,’ Finding 16: ‘At three stated hours during the day, namely at 7.55 a.m., 12.55 p.m., and 6.55 p.m., men seeking employment gather in a group or semicircle, constituting the ‘shape,’ at the head of a pier where work is available. The foreman stevedore then selects from the ‘shape’ such men as he desires to hire, to work until ‘knocked off’, that is, told to quit. The selection of a man from the shape carries with it no obligation on the part of the employer concerning any specified length of employment, except for work requirements of the Collective Agreement relating to minimum hours under specified conditions. The duration of employment depends entirely upon the determination of the stevedore or the steamship company.’

10 The trial court found, Finding 13, that ‘The work week commenced on Monday at 7 a.m. and ended the following Monday at 7 a.m.’ The 44-hour week had been in the contracts between the Shipping Association and the Longshoremens Association prior to the Fair Labor Standards Act. No adjustment of the basic workweek was made in the contract when the 42- and 40-hour provisions of § 7(a) became effective.

11 Mr. Ryan explained the Association objective as follows: ‘Our objective was to de-casualize longshore work as much as possible, to have the work done in the daytime as much as possible, and make it as expensive for the employers as possible on Sunday. Before there was any union we had double time for Sunday. We wanted to work in the daytime. We figured we only live once. We want the daytime when every man who wants to work wants it done in the daytime and not during overtime. The employers would say it cannot be done in the steamship industry. I think we have proven for them that after 30 years of negotiating many of the things they said could not be done in the industry, when they found it too expensive to do it in any other way, have been done.

‘Q. Do the men object to working outside of a normal day?—A. Absolutely.’

Furthermore, as the Longshoremens Association’s primary interest is as stated above by Mr. Ryan, it fears the effect on their employment contract of a holding that the contract overtime rate must be used in the determination of statutory excess compensation. The Shipping Association might insist on a reduction of the contract overtime rate, if payment of that rate were not to be treated as a satisfaction of the statutory requirements.

12 See note 7, supra.

13 Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 577, 578,6 2 S.Ct. 1216, 1219 1220, 86 L.Ed. 1682Walling v. Helmerich & Payne, 323 U.S. 37, 40, 65 S.Ct. 11, 13, 89 L.Ed. 29Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 706, 65 S.Ct. 895, 902, 89 L.Ed. 1296; Jewell Ridge Coal Corp. v. Local No. 6167, 325 U.S. 161, 167, 65 S.Ct. 1063 1066, 89 L.Ed. 1534.

14 Kirschbaum Co. v. Walling, 316 U.S. 517, 523, 62 S.Ct. 1116 1120, 86 L.Ed. 1638; see § 9, Part IV, Portal-to-Portal Act, 61 Stat. 84, 29 U.S.C.A. § 258.

15 149 Madison Ave. Corp. v. Asselta, supra, 331 U.S. at page 204, 67 S.Ct. at page 1181: ‘The crucial questions in this case, however, are whether the hourly rate derived from the formula here presented was, in fact, the ‘regular rate’ of pay within the statutory meaning and whether the wage agreement under consideration, in fact, made adequate provision for overtime compensation.’ Walling v. Harnischfeger Corp., 325 U.S. 427, 432, 65 S.Ct. 124689 L.Ed. 1711.

16 Walling v. Youngerman-Reynolds Hardwood Co., supra, 325 U.S. 42465 S.Ct. 1244; Walling v. Harnischfeger Corp., supra, 325 U.S. 430, 65 S.Ct. at page 1248.

17 National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq.; Labor Management Relations Act of 1947, 61 Stat. 136, 29 U.S.C.A. § 141 et seq.; Norris-LaGuardia Act, 47 Stat. 70, § 2, 29 U.S.C.A. § 102; Portal-to-Portal Act of 1947, 61 Stat. 84, § 1, 29 U.S.C.A. § 251.

18 The contention, however, found favor with the District Court: ‘Such catastrophic results are inevitable once we accept plaintiffs’ underlying premise—that in determining the ‘regular rate’ intended by Congress, we must close our eyes to the contract in good faith negotiated between employer and employees and look only to the actual work pattern. Upon such a premise, genuine collective bargaining cannot live.’ 69 F.Supp. 956, 959.

19 ‘Collective bargaining, to be effective, must necessarily deal with large groups—with all the workers in the industry, or its subdivision, on whose behalf the bargaining is being conducted. And when, as in the I.L.A., such collective agreements are submitted to a vote of the membership affected, and that approval of the bargain thus arrived at is voted, it would make ofc ollective bargaining a mockery if some of them could seek special terms, because, for a short period of time, their work experience has varied in some degree from that of their fellow workers.’

20 See note 30 and Walling v. Youngerman-Reynolds Hardwood Co., supra, 325 U.S. 424, 425, 65 S.Ct. 1244, 1245.

21 Cf. Finding 28(a): ‘Prior to the Fair Labor Standards Act, the word overtime had a generally accepted meaning in American industry, a mely, excess time, to which a penalty rate of compensation was applied to discourage such work. The idea of excessivity, however, was not an indispensable element of the concept of overtime as understood. Overtime was also understood to cover hours outside of a specified clock pattern.’

22 The holding in Walling v. Helmerich & Payne, supra, is not to the contrary of this position. The facts of that case indicated a palpable evasion of the statutory purposes. See 69 F.Supp. at page 958, note 1.

Nor is the decision in 149 Madison Ave. Corp. v. Asselta, supra, opposed to this position. In that case weekly wage contracts calling for a workweek of 46 and 54 hours provided the following formula for determining the regular hourly rate of pay: ‘The hourly rates for those regularly employed more than forty (40) hours per week shall be determined by dividing their weekly earnings by the number of hours employed plus one-half the number of hours actually employed in excess of forty (40) hours.’ 331 U.S. at page 202, 67 S.Ct. at page 1180. Under that method of computation an employee who worked 46 hours received a sum equal to what he would have received if he had been paid for 40 hours’ work at the formula hourly rate and 6 hours of work at one and a half times the formula rate. As so construed, the extra pay for work in excess of 40 hours would be an overtime premium which could be excluded from the computation of the regular rate, and the regular rate would be the formula rate. The Court did not reach the question of the legality of that method of computation as it held that since the formula rate was not consistently employed in determining compensation, the formula rate could not be considered the regular rate for those who worked more that 40 hours. Accordingly the regular rate was held to be the average of all wages actually paid during the entire week. See Asselta v. 149 Madison Ave. Corp., 2 Cir., 156 F.2d 139, 141.

23 The opinion stated:

‘This controversy requires for its resolution a delicate adjustment to accommodate the harmonious application of three national policies. A heavy handed meshing of these three policies with the industrial machine which fails to minimize the friction at their points of contact can generate enough heat to impair one or more of the policies or severely injure the machine itself.

‘In chronological order we have (1) the National Labor Relations Act, July 5, 1935, 49 Stat. 449, * * * to encourage the practice of collective bargaining; (2) the Fair Labor Standards Act, June 25, 1938, 52 Stat. 1060, * * * to correct and eliminate the labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency and general well being of workers; (3) the national need during the war for the maximum of production as illustrated by Executive Order 9301, February 9, 1943 (29 U.S.C.A. § 207 note), 8 Fed.Reg. 1825, establishing the 48 hour week for the duration of the war.’69 F.Supp. 956, 958.

24 36 hours $1 14 hours $1.50=total wages $57. Regular rate=$57, less overtime premium of $7, 50 hours=$1 per hour.

25 5 days 8 hours at $1 per hour 5 days 2 hours at $1.50 per hour=$55 total wage. Regular rate=$55—$5 50=$1 per hour.

26 Executive Order 9301, issued February 9, 1943, 8 F.R. 1825, provided that all government contractors should work their employees at least 48 hours per week. The Order provided that it should not be construed as superseding the provisions of any individual or collective bargaining agreement with respect to rates of pay for hours worked in excess of the agreed or customary workweek, nor as suspending or modifying any provision of the Fair Labor Standards Act or any other law relating to the payment of wages or overtime.

27 For example, daytime watchman’s pay, $.60 per hour. Nighttime watchman’s pay $.90 per hour, eight-hour, seven-day shift. Sixteen hours would be compensated for at excess time rates. The watchman’s pay would be 56 $.90=$50.40. His statutory excess pay 16 $.45=$7.20; total $57.60. His regular rate is ($57.60—$7.20) 56 or $.90 per hour.

Compare Legal Field Letter 109, Office of the Solicitor, Department of Labor, July 31, 1946, 1947 Wage-Hour Man. 66, in which the Chief of the Wage-Hour Section characterizes a particular 50% differential as a shift differential.

28 This is well brought out by a case similar in character to this litigation. Ferrer v. Waterman S.S. Corp., D.C., 70 F.Supp. 1. There the wage schedule was as follows, 70 F.Supp. at page 3:


From To Work Days Holidays

7 A.M. 12 M.D……. $0.55. $0.77

12 M.D. 1 P.M…….. 0.90. 1.00

1 P.M. 4 P.M…….. 0.55. 0.77

4 P.M. 6 P.M…….. 0.77. 0.84

6 P.M. 7 P.M…….. 0.90. 1.20

7 P.M. 11 P.M……. 0.77. 0.84

11 P.M. 12 M.N……. 0.90. 1.25

12 M.N. 6 A.M…….. 0.84. 1.02

6 A.M. 7 A.M…….. 1.30. 1.40

29 We avoid any extended discussion of respondents’ suggestion that the proper way to determine the regular rate is to divide the wages received during the first forty hours of work in a week by 40. The quotient, it is suggested, would be the regular rate. One fault of that method, we think, is that such wages might contain overtime premium payments; for example, a contract which fixed a rate for 36 hours and a higher rate for subsequent hours. Another objection is that such a method of computation would give an improperly weighted average for the rate of pay for the entire week; an employee who performed more highly skilled or unpleasant work after 40 hours of work would not receive the proper amount of statutory excess compensation if the regular rate were computed only on the basis of the first 40 hours. The statement as to statutory excess hours in Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 43 , 65 S.Ct. 1242, 1245, was made as to a situation where this Court concluded the dual pay plan of the case was ‘wholly unrealistic and artificial * * * so as to negate the statutory purposes.’ The problem we are here considering was not at issue.

30 The question is sufficiently shown by this excerpt: ‘Extra compensation paid for overtime work, even if required to be paid by a union agreement or other agreement between the employer and his employees need not be included in determining the employee’s regular hourly rate of pay (see par. 13 of this bulletin). Furthermore, in determining whether he has met the overtime requirements of section 7 the employer may properly consider as overtime compensation paid by him for the purpose of satisfying these requirements, only the extra amount of compensation—over and above straight time—paid by him as compensation for overtime work that is, for hours worked outside the normal or regular working hours—regardless of whether he is required to pay such compensation by a union or other agreement.’ Interpretative Bulletin No. 4, United States Department of Labor, Wage and Hour Division, Office of the Administrator, revised November 1940.

31 As a matter of fact in half of the cargo classifications, the overtime rate was a few cents less per hour than time and a half the straight time rates.

32 Conclusion of Law No. 3: ‘The ‘straight time hourly rate’ set forth in each subdivision of Paragraph 4 of the Collective Agreement, as stated in Finding of Fact No. 9, constituted the regular rate at which plaintiffs were employed when handling the stated kind of cargo.’

33 It is clear under the applicable section of the agreement, § 2(a), note 5 above, that a man could work all his time wholly in contract overtime hours. An employee received overtime premium for work done in what the trial court considered to be the basic workweek. Finding 43(a): ‘If, and only if, a longshoreman worked more than 40 hours between 8 a.m. and 12 noon, and 1 p.m. and 5 p.m. on Mondays to Fridays, inclusive, and between 8 a.m. and 12 noon on Saturday of that workweek, none of these days being a holiday, he was paid an additional sum for work on Saturday morning in excess of 40 hours—namely 62 1/2 cents per hour, * * *’

34 See Interpretative Bulletin No. 4, § 14. The Administrator illustrates his position with the following example: an employee works 30 hours a week at an occupation paying 40 cents an hour and 20 hours in the same week at an occupation paying 50 cents an hour. The employee’s regular rate of pay is 44 cents an hour (30 hours 40 cents 20 hours 50 cents 50 hours), and he is entitled to receive $2.20 in addition to the $22 he has already received, equal to the number of overtime hours (10) multiplied by one-half the regular rate of pay (22 cents).

If it were held that an employer, under the contract we are here considering, could credit himself only with the wages actually paid during the hours following the first 40, an employee who performed 40 hours of contract overtime work early in the week and 10 hours of straight time after the first 40 hours would receive a larger award than an employee who first worked 10 straight time hours and then worked 40 contract overtime hours. Such a variation in the amount of statutory excess compensation would not be in accord with the statutory purpose.

Compare, however, Releases 1913 and 1913(a) issued by the Administrator on December 1, 1942 and January 5, 1943, which provide that an employer may if he so elects compute the regular rate on the basis of the number of hours worked in excess of 40. If that method of computation of the regular rate is followed, an employer could credit himself with the wages actually paid during the hours in excess of 40.

1 Section 1(a), Portal-to-Portal Act of 1947, 61 Stat. 84, 29 U.S.C. § 251(a), 29 U.S.C.A. § 251(a).

2 ‘No employer shall * * * employ any of his employees * * * for a workweek longer than forty hours * * * unless such employee receives compensation for his employment in excess of (fory hours) at a rate not less than one and one-half times the regular rate at which he is employed.’ 52 Stat. 1060, 1063, 29 U.S.C. § 207(a), 29 U.S.C.A. § 207(a).

3 ‘2(a) The basic working day shall consist of 8 hours, and te basic working week shall consist of 44 hours. Men shall work any night of the week, or on Sundays, Holidays, or Saturday afternoons, when required. On Saturday night, work shall be performed only to finish a ship for sailing on Sunday, or to handle mail or baggage.

‘(b) Meal hours shall be from 6 a.m. to 7 a.m., from 12 Noon to 1 p.m., from 6 p.m. to 7 p.m., and from 12 Midnight to 1 a.m.

‘3(a) Straight time rate shall be paid for any work performed from 8 a.m. to 12 Noon and from 1 p.m. to 5 p.m., Monday to Friday, inclusive, and from 8 a.m. to 12 Noon Saturday.

‘(b) All other time, including meal hours and the Legal Holidays specified herein, shall be considered overtime and shall be paid for at the overtime rate.

‘(c) The full meal hour rate shall be paid if any part of the meal hour is worked and shall continue to apply until the men are relieved. * * *’

4 For purposes of this case, the ‘overtime’ rate may be regarded as 150% of ‘straight time’ in all instances, since the District Court allowed the respondents to recover for those few instances where the ‘overtime’ was slightly less, and this portion of its judgment was not appealed.

5 On the other hand, although the contract did not so specify, in the unusual situation of a longshoreman working over forty hours of ‘straight time’ for one employer in one week, he was paid time and a half for the excess. Where this had not been done, the District Court allowed appropriate recovery, and this was not appealed.

6 Similar intentions were expressed again and again in the Committee Hearings and on the floor of both Houses of Congress by the spokesmen of the Administration and Congressional Committee members. See the Joint Hearings before the Senate Committee on Labor and Education and the House Committee on Labor, 75th Cong., 1st Sess., pp. 46—47 (Asst. Atty. Gen. Jackson); id. pp. 181—83 (Secy. Perkins and Sen. Walsh); 81 Cong.Rec. 7650, 7651, 7808 (Sen. Black); 7652, 7799, 7800, 7885—86, 7937 (Sen. Walsh); 7813 (Sen. Pepper); 82 Cong.Rec. 1390 (Rep. Norton); 1395 (Rep. Randolph); 83 Cong.Rec. 7291 (Rep. Allen); 7310 (Rep. Fitzgerald); 9258 (Rep. Randolph).

7 Cf. Lord Stowell, in The Neptune, 1 Hagg.Adm. 227, 232: ‘* * * the natural and legal parents of wages are the mariner’s contract, and the performance of the service covenanted therein; they in fact generate the title to wages.’

8 The following figures were either stipulated by the parties, found as facts by the District Court and concurred in the Circuit Court of Appeals andt his Court, or computed from such statistics:

Oct. 24, 1938

1932-37 (effective date Apr. 1, 1944—

average of FLSA) to Mar. 31, 1945

Aug. 31, 1939 (height of

(eve of war) wartime activity)

Work performed during straight

time hours.. 79.93%. 75.03% 54.5%

Night work… 15.13%. 17.89% 20.5%

Weekend work.. 4.94%. 7.08% 25.0%

Total night work by men who

had worked during same day 13. 2% 23.29% 44.5%

Ditto by those who had not. 86. 8% 76.71% 55.5%

Total man-hours, consisting of

night work by those who had

not worked during same day 2.57% 4.17% 11.1%

Concentration of man-hours

straight time over overtime 11.22 8.47 3.38

9 That the hours designated by the agreement as ‘overtime’ were regarded by the union as excessive hours, rather than merely as unpleasant hours, may also be deduced from the fact that they included much weekday time in which there was ample daylight during a large part of the year, and were not confined to nights and weekends. Another indication of the same thing is the fact that the history of the union agreements for New York longshoremen reveals a succession of reductions of the total number of ‘straight time’ hours parallel to the reduction of the usual weekly working hours during the same period throughout American industry.

10 Of course, if it can be shown that particular employees for reasons of color, lack of seniority, or anything else—were not fairly or properly represented in the collective bargaining agreement, and were discriminated against and forced into a less desirable class of work, not because of accident or their on desire but because of the deliberate policy of the employers, the union, or both, we cannot treat the agreement made for the generality of longshoremen as binding upon them as well. See Steele v. Louisville & N.R. Co., 323 U.S. 19265 S.Ct. 22689 L.Ed. 173Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 323 U.S. 21065 S.Ct. 23589 L.Ed. 187. The respondents’ claim was not based upon any such allegation.

11 Italics supplied.

12 The Interpretations of the Wage-Hour Administrator pertinent to this case are conflicting and inconclusive. Citation of the most relevant should suffice. Cf. §§ 69, 70, Interpretative Bulletin No. 4, Wage and Hour Division, Department of Labor.

Aug 27 14

Voluntary Separation to Resolve Marital Disputes

by merlin

Often, two people have such irreconcilable differences that they need to have clear, externally-imposed guidelines on playing fair with each other and with any children from their marriage.  Often, it is the lack of such guidelines that keeps them from taking the step of obtaining a divorce, because they just don’t feel willing to do something so final without a little certainty about it.  Maybe they don’t need a divorce, though – maybe they just need some time away from each other to clear their heads, but want some rules to make sure they both play fair during that time apart.

For this reason, Georgia law allows for a voluntary separation while two people work out their differences and resolve the issues that a divorce decree and separation agreement would necessarily entail but without the mutual revulsion that such a situation generally can involve.  Specifically, this arrangement is hinted at in Section 19-6-8 of the Official Code of Georgia, which provides that

“[i]n cases of voluntary separation or in cases where one spouse, against the will of that spouse, is abandoned or driven off by the other spouse, a party voluntarily, by contract or other written agreement made with his spouse, may make an adequate provision for the support and maintenance of such spouse, consistent with the means of the party and the former circumstances of the spouse. Such an agreement shall be a bar to the right of the spouse to permanent alimony.”

What this allows is for the parties themselves to figure out how much and when support should be paid, instead of having a Court announce its Order as to who should pay what.  It goes further, of course – the house, the car, and even the family pet could all be provided for.  Many couples have benefited from this process, though it continues to be underutilized.  These kinds of agreements are, of course, perfectly valid contracts, and they are appealable in and of themselves.  In fact, the State of Georgia has an express policy to enforce voluntary and mutually-agreeable contracts like this one – “The superior courts of this state encourage parties to reach settlements rather than waiting years to find a place on the crowded dockets.”

 The case referenced above talks about the enforceability of mutually-agreed terms in Settlement Agreements.  It’s Robinson v. Robinson, 261 Ga. 330, 404 S.E.2d 435 (Ga. S. Ct. 1991):

        Marva B. Simpson, Vanessa I. Hickey-Gales, Atlanta, for Terry C. Robinson.

        Dana A. Azar, Decatur, for Thomas W. Robinson.

        SMITH, Presiding Justice.

        Mr. and Mrs. Robinson appeared in the Superior Court of Gwinnett County on March 26, 1990 for a final hearing on their divorce petition. The parties’ attorneys announced that a settlement had been reached, and they wished to put the terms of the settlement into the record. When the agreement was memorialized, an additional term was included that was not read into the record. Despite the appellant’s, Mrs. Robinson’s, protest, the trial court order included the additional term. We granted the appellant’s discretionary appeal and asked the parties to address whether or not “the judgment entered by the trial court accurately reflects the settlement reached by the parties.” We find that it does not, and we reverse.

        During the settlement hearing, Mr. Robinson’s attorney stated that Mr. Robinson would make alimony payments until a certain date provided that Mrs. Robinson did “not die [or] remarry.” That was the only reference to termination of alimony read into the record by the appellee. Mrs. Robinson’s attorney responded, “All the alimony payments are subject to that, we don’t have to repeat that with every payment.” On three different occasions during the hearing, without challenge by Mr. Robinson, Mr. Robinson’s attorney stated that the agreement read into the record was the full and final agreement between the parties and that it was not subject to modification. 1 After the full agreement was read into the record, the parties were examined. Mr. Robinson testified that the agreement was correct, that he understood and was satisfied with the terms of the agreement, and that he desired the agreement to be made a part of the order of the court and be enforceable by the court. Mrs. Robinson also testified that she understood and was satisfied with the terms of the agreement. However, the memorialized agreement presented to the court included a term that was not in the record, i.e., that Mrs. Robinson’s alimony would terminate if she “cohabits with another male.” Despite Mrs. Robinson’s protest, the final divorce decree included the additional termination event.

         The appellant relies upon Daniel v. Daniel, 250 Ga. 849, 852, 301 S.E.2d 643 (1983) for the proposition that “[t]here is a strong public policy in favor of enforcing contracts as written and agreed upon.” The appellee, looking to another line of cases, argues that the trial court acted within its discretion as it has the authority to approve or disapprove an agreement “in whole or in part, or refuse to approve it as a whole. If in making the agreement a part of the decree, there is express provision in the decree that … conflicts with the agreement between the parties … the words of the decree will control.” Amos v. Amos, 212 Ga. 670, 671, 95 S.E.2d 5 (1956).

        The domestic relations laws of this state have changed tremendously since Amos was written, without citation of authority, and our superior courts are experiencing case loads that could not have been envisioned thirty-five years ago. The superior courts of this state encourage parties to reach settlements rather than waiting years to find a place on the crowded dockets. Our strong public policy of encouraging negotiations and settlements would be greatly eroded if we allow trial courts to add substantive terms to agreements read and recorded in open court. Additionally, it would create an anomaly if we allow trial courts to make substantive additions in voluntary agreements made before the court while forbidding substantive changes in jury verdicts. “The decree should carry the verdict into effect, not destroy it. [OCGA § 19-5-13]; Gilbert v. Gilbert, 151 Ga. 520, 523 (107 SE 490).” Wise v. Wise, 156 Ga. 459, 465, 119 S.E. 410 (1923). See generally, OCGA §§ 9-12-7 and 17-9-40. 2 Just as a decree should accurately reflect the jury’s verdict, a decree should also accurately reflect a settlement reached by the parties.

        Judgment reversed.

        All the Justices concur, except HUNT, J., who concurs in the judgment only.


1 “Excuse me, Your Honor, let me restate the alimony section. The full and final settlement of each and all their rights against each other, they both waive the right to modify this agreement.” “Both sides have waived their right to a future modification of this and it’s a full and final settlement. I think all matters should be controlled by Georgia Law.” “[W]e believe this is a full and final settlement of each and every right and it’s fully and finally settled.”

2 In child custody cases, trial courts are required to ratify agreements made between the parents and make them part of the court’s final judgment “unless the court makes specific factual findings that the agreement would not be in the best interest of the child or children.” OCGA § 19-9-5(b).


Aug 25 14

The Certificate of Service of Discovery

by merlin

Uniform Rule of Superior Court 5.2 governs the proper method to show service in Discovery (termed generally as a Certificate of Service of Discovery).  It holds as follows:

“(1) Depositions and other original discovery material shall not be filed with the court unless or until required by the provisions of OCGA § 9-11-29.1(a) (1) (5).

(2) A party serving Interrogatories, Requests for Production of Documents, Requests for Admission and Answers or responses thereto upon counsel, a party or a non party shall file with the court a certificate indicating the pleading which was served, the date of service (or that the same has been delivered for service with the summons) and the persons served.”

The statutory subsection that this Rule refers to, (a)(1)(5), is actually something I was completely unaware of until several years after law school, when I first saw a Certificate of Service of Discovery.  While that method means that it is far less costly for a solo practitioner to engage fully in the Civil Discovery process, the issue of fairness is paramount.  This statutory rule attempts to bring a little more fairness to the process by requiring that the items that are used in trial and post-trial motions from Discovery are filed and served, to the extent that they are used.  I have never observed a Discovery fight involving this issue, but the consideration seems valid.  That statutory subsection is below:

“(5) Such material is to be used at trial or is necessary to a pretrial or posttrial motion and said material has not previously been filed under some other provision of this chapter, in which event the portions to be used shall be filed with the clerk of court at the outset of the trial or at the filing of the motion, insofar as their use can be reasonably anticipated by the parties having custody thereof, but a party attempting to file and use such material which was not filed with the clerk at the outset of the trial or at the filing of the motion shall show to the satisfaction of the court, before the court may authorize such filing and use, that sufficient reasons exist to justify that late filing and use and that the late filing and use will not constitute surprise or manifest injustice to any other party in the proceedings.”

Aug 21 14

Re-Post (3/28/14, on Legitimation as a Separate Proceeding)

by merlin

As part of an ongoing matter involving complex but interrelated issues of custody, visitation, and criminal charges, this issue has arisen again.  This time, the novel occurrence of an Acknowledgment of Legitimation (whose initial efficacy as an intelligent aspect of the Grandparent Visitation Act has been diminished by subsequent interpretation) made matters more complex, and the best way to deal with the situation appears to be the filing of an entirely new legitimation action itself, subsuming and incorporating any prior modification of custody action.  As a refresher to this topic, here is an earlier post on this issue from March of this year:

Previously, this site has addressed Section 19-7-22 of the Official Code of Georgia, which sets forth the right and mechanism of the father to legitimate his relationship with his biological child.  In section f.1 of that statute, certain other rights are granted to the petitioner.  It says that “[t]he petition for legitimation may also include claims for visitation, parenting time, or custody. If such claims are raised in the legitimation action, the court may order, in addition to legitimation, visitation, parenting time, or custody based on the best interests of the child standard. In a case involving allegations of family violence, the provisions of paragraph (4) of subsection (a) of Code Section 19-9-3 shall also apply.”

However, legitimation cannot be raised as part of a proceeding to prevent an adoption, and must be pursued separately.  The case that establishes this rule in Georgia is Brewton v. Poss, 316 Ga.App. 704 (Ga. Ct. App. 2012).  Note that counsel for Poss, who won the case, was James B. Outman, whose abilities in this field are to be respected and admired.  The opinion follows:

Christoper Michael Blanchard, for Brewton.

James B. Outman, Albert L. Stone Jr., Danielsville, for Poss.

DOYLE, Presiding Judge.

        Kenneth Jason Poss initiated a proceeding to adopt T.J.B., the biological son of Kristen Poss, Kenneth’s wife. Lee Thomas Brewton, the putative biological father, filed a petition for legitimation of T.J.B. as a part of that proceeding. Kenneth moved to quash the petition, and the superior court granted the motion, giving rise to this discretionary appeal. 1 Brewton contends that the superior court erred by ruling that he failed to meet the requirements for filing a petition for legitimation under OCGA § 19–7–22 and therefore denying his motion to sever the petition he filed in the adoption proceeding. For the reasons that follow, we reverse.

        The record shows that in February 2011, Kenneth filed in superior court a petition for adoption of T.J.B. and notified Brewton by publication.2 The last date of publication was February 25, 2011. On March 4, 2011, Brewton, represented by counsel, filed in the same court a petition for legitimation of his relationship with T.J.B., naming Kristen as a defendant, and he attempted to serve Kristen by mailing a copy to Albert Stone, Jr., who had filed the adoption petition on behalf of Kenneth.3 Brewton’s legitimation petition was filed with the same civil action number as Kenneth’s adoption petition, and no filing fee was required by the clerk.

        On March 31, 2011, Kenneth moved to quash Brewton’s legitimation petition. After receiving the motion, Brewton personally served Kristen on April 20, 2011. On May 11, 2011, Kristen appeared pro se and filed an answer to the legitimation petition and a counterclaim for pregnancy-related medical costs and child support. Brewton filed a response to the motion to quash and moved to sever his legitimation petition from the adoption proceeding. After a hearing, the superior court granted Kenneth’s motion to quash, thereby denying Brewton’s motion to sever, on the ground that Brewton had failed to properly file his legitimation petition. Brewton filed an application for discretionary appeal, which this Court granted.

         Brewton contends that the trial court erred by ruling that he failed to properly file his legitimation petition in accordance with OCGA § 19–7–22, which provides as follows, in relevant part:

        (a) A father of a child born out of wedlock may render his relationship with the child legitimate by petitioning the superior court of the county of the residence of the child’s mother or other party having legal custody or guardianship of the child…. If a petition for the adoption of the child is pending, the father shall file the petition for legitimation in the county in which the adoption petition is filed.

        (b) The petition shall set forth the name, age, and sex of the child, the name of the mother, and, if the father desires the name of the child to be changed, the new name. If the mother is alive, she shall be named as a party and shall be served and provided an opportunity to be heard as in other civil actions under Chapter 11 of Title 9, the “Georgia Civil Practice Act.”

Based on this Code section, the trial court ruled that Brewton’s petition “had no legal effect” because it was not filed as a separate civil action apart from the pending adoption proceeding.

        OCGA § 19–7–22 does not define the term “petition,” 4 and does not explicitly state whether the petition must be filed as a separate civil action, or whether it could be filed as part of a pending action. 5 Thus, we turn to the rules of statutory construction, 6 which “require us to construe [the] statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage. At the same time, we must seek to effectuate the intent of the legislature.” 7

        Turning to the terms of OCGA § 19–7–22, we note that although the Code section does not explicitly state that a legitimation petition must be a separate civil action, the Code section employs language suggesting that a legitimation petition would initiate a separate action as opposed to merely requesting relief within another pending case. For example, subsection (b) refers to “other civil actions,” meaning that a legitimation petition itself is viewed as a type of civil action. Subsection (f.1) refers to the petition as a “legitimation action.” 8 This language within OCGA § 19–7–22 suggests that legitimation petitions are separate civil actions. And subsection (g), applicable to suits for paternity under OCGA § 19–7–43(a)(4), explicitly state that an alleged father may file a third party action for legitimation as part of his response to the paternity suit. The absence of language explicitly providing for a similar avenue in the adoption context implies that the legislature intended legitimation petitions to be stand-alone actions.9

        Moreover, the adoption statutes, which are implicated in this context, are informative. OCGA § 19–8–12, which requires an adoption petitioner to give notice to the biological father, provides that a biological father will lose all rights to the child unless he files a petition to legitimate and files “ notice of the filing of the petition to legitimate… with the court in which the [adoption] action … is pending….” 10 It would make no sense to require a separate notice of the filing of the legitimation petition if it already was a part of the adoption proceeding, and such a requirement would be superfluous. Therefore, like the legitimation statute, the adoption statute functions as if a legitimation petition would be filed in a separate action.

         In light of these statutory schemes, we conclude that the petition in this case should have been filed as a separate civil action. Having so concluded, we must nevertheless consider whether the trial court erred by denying Brewton’s motion to sever. It is clear that Brewton’s petition complied with the substance of the legitimation statute, other than by having a separate civil action number: the petition contained the requisite information, it was served on the mother,11 and it was timely filed in the proper court. Further, Brewton’s failure to file his petition as a separate civil action caused no prejudice to anyone. OCGA § 1–3–1, applying to the construction of statutes generally, provides that “substantial compliance with any statutory requirement … shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by law.” 12 Applying this policy here is appropriate because “there can scarcely be imagined a more fundamental and fiercely guarded right than the right of a natural parent to its offspring … [Termination of that right] can be done by the court only under the most carefully controlled and regulated circumstances….” 13 Therefore, in light of the fundamental right at stake, the lack of prejudice, and Brewton’s substantial compliance with the statute in every way other than prevailing upon the clerk to file the petition under a different civil action number, we conclude that the trial court abused its discretion by denying his motion to sever.

        Kenneth argues that Brewton’s failure to pay a filing fee and file a civil case filing form required by OCGA § 9–11–3(b) are fatal to his legitimation claim. But the record shows that the clerk, when asked by Brewton, did not require payment of a filing fee, and Brewton’s attorney merely followed the procedure suggested by the clerk. OCGA § 9–11–3(b) provides that

        [i]f, after a civil action has been filed, the court presiding over the civil action decides that the civil case filing form has not been filed or has been filed incorrectly, the court shall require the plaintiff to file the civil case filing form or an amended form. In no case shall the failure to accurately complete the civil case filing form required by this Code section provide a basis to dismiss a civil action.14

Thus, under the circumstances of this case, any such filing defects can be cured upon remittur.

        Judgment reversed.

ANDREWS and BOGGS, JJ., concur.



        1. Brewton filed his application pursuant to OCGA § 5–6–35(a)(2), which addresses domestic relations cases. Having granted the application, we need not decide whether the ruling on his legitimation petition would be directly appealable under the collateral order doctrine. See, e.g., Britt v. State, 282 Ga. 746, 748(1), 653 S.E.2d 713 (2007).

        2. See OCGA § 19–8–12(b), (c).

        3. Kristen Poss was not a party to the adoption action.

        4. But see Phagan v. State, 287 Ga. 856, 858–859, 700 S.E.2d 589 (2010) (“petition” and “complaint” are synonymous and both are pleadings within the purview of the Civil Practice Act).

        5. Compare Opensided MRI of Atlanta, LLC v. Chandler, 287 Ga. 406, 407, 696 S.E.2d 640 (2010) (OCGA § 9–11–9.1, on its face, required “a motion to dismiss to be [separately] filed in addition to the first responsive pleading,” because it required the defendant to raise its dispositive defense “ ‘ by motion to dismiss filed contemporaneously with its initial responsive pleading.’ ”) (emphasis in original).

        6. See Cook v. NC Two, L.P., 289 Ga. 462, 465, 712 S.E.2d 831 (2011) (“rules of statutory construction are not applicable when the statute is plain and unambiguous and susceptible to but one natural and reasonable construction since judicial construction of such a statute is unauthorized”).

        7. (Citations omitted.) Slakman v. Continental Cas. Co., 277 Ga. 189, 191, 587 S.E.2d 24 (2003), citing OCGA § 1–3–1(a).

        8. (Emphasis supplied.)

        9. See SRB Investment Svcs., LLLP v. Branch Banking & Trust Co., 289 Ga. 1, 6(3)(a), 709 S.E.2d 267 (2011) (presuming that omission of certain language was intentional because another statute contained the language); In the Interest of T.C.D., 281 Ga.App. 517, 518, 636 S.E.2d 704 (2006) (language cannot be added to a statute by judicial decree).

        10. (Emphasis supplied.) OCGA § 19–8–12(e). Consistent with the notice scheme, Uniform Superior Court Rule 39.6 requires adoption dockets to be maintained separate from regular civil dockets.

        11. The fact that Brewton did not complete service on the mother within the 30–day deadline in OCGA § 19–8–12(e) was not fatal for the same rationale as explained inIn the Interest of A.H., 279 Ga.App. 77, 82(2), 630 S.E.2d 587 (2006).

        12. (Emphasis supplied.)

        13. (Punctuation omitted.) Id.

        14. (Emphasis supplied.)

Aug 19 14

First Offender Status Cannot Be Added Once a Plea is Entered

by merlin

Having obtained permission from the State to modify a sentence entered this term of Court if it was legal (because they stated that they had done such a thing before), the next step was an inquiry into the legality of accomplishing this.  Unfortunately, it just doesn’t appear to be permitted under the law, according to the plain language of the statute and the cases that have discussed the ability of courts to modify sentences to include First Offender status.

The below case, Burchette v. State, 247 Ga.App. 873 (Ga. Ct. App. 2005), talks about a modification of an existing sentence to include First Offender status, because the person was considered eligible for it but had not entered their sentence under the Act.  It specifically dealt with the ability of the Court to modify the sentence imposed within the one-year time-limit for such modifications under Section 17-10-1(f) of the Official Code of Georgia.

 That subsection reads as follows:

Within one year of the date upon which the sentence is imposed, or within 120 days after receipt by the sentencing court of the remittitur upon affirmance of the judgment after direct appeal, whichever is later, the court imposing the sentence has the jurisdiction, power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed. Prior to entering any order correcting, reducing, or modifying any sentence, the court shall afford notice and an opportunity for a hearing to the prosecuting attorney. Any order modifying a sentence which is entered without notice and an opportunity for a hearing as provided in this subsection shall be void. This subsection shall not limit any other jurisdiction granted to the court in this Code section or as provided for in subsection (g) of Code Section 42-8-34.”

Unfortunately, in the Burchette case, the Court looked to the plain language of the First Offender statute and saw that the power of the court is entirely based on the punishment being imposed prior to finding the person guilty.  Therefore, a post-sentence modification that would seek to impose the First Offender statute’s conditional discharge provisions would be impossible to apply once the sentence was imposed and the person had already entered a guilty plea that had been adopted by the Court.  As I had learned from my research previously, when this situation first arose, the only legal way to get this done would be to withdraw the guilty plea during the same term of court, if the Court allows it, and then re-sentence the person under the First Offender Act.

The Burchette case is below:

 Banks Stubbs Neville & Cunat, Rafe Banks, Cumming, for appellant.

        Penny Penn, District Attorney, for appellee.

        ELLINGTON, Judge.

        In August 2001, a Forsyth County jury convicted Michael Burchette of arson, OCGA § 16-7-60. The trial court denied his request for first offender treatment under OCGA § 42-8-60 and sentenced him to 15 years probation. After this Court affirmed his conviction,1 Burchette filed a motion with the trial court to modify his sentence by granting him first offender treatment. The court denied the motion, finding that it could not grant first offender treatment after it had imposed sentence. Burchette appeals and, finding no error, we affirm.

        Georgia’s first offender law, OCGA § 42-8-60(a), states as follows:

        Upon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and with the consent of the defendant: (1) Defer further proceeding and place the defendant on probation as provided by law; or (2) Sentence the defendant to a term of confinement as provided by law.

        (Emphasis supplied.) Under the plain language of this statute, a trial court is only authorized to grant first offender treatment before a defendant has been adjudicated guilty and sentenced. Lewis v. State, 217 Ga.App. 758, 759, 458 S.E.2d 861 (1995). It follows that, once a trial court imposes a sentence, the defendant loses the opportunity to be treated as a first offender. Id.

        Burchette argues, however, that the trial court retained jurisdiction to modify or reduce his sentence in this case pursuant to OCGA § 17-10-1(f),2 and, therefore, the trial court had the authority to modify his sentence to give him first offender treatment. But OCGA § 17-10-1(f) only provides an opportunity for a court to modify an existing sentence. Therefore, the statute cannot be used to grant first offender treatment when the first offender act specifically prohibits such modification after sentencing. OCGA § 42-8-60 et seq.; Lewis v. State, 217 Ga.App. at 759, 458 S.E.2d 861. Burchette’s argument to the contrary is without merit.

        Accordingly, we find the trial court properly denied Burchette’s motion to modify his sentence.

         Judgment affirmed.

        SMITH, P.J., and ADAMS, J., concur.



 1. Burchette v. State, 260 Ga.App. 739580 S.E.2d 609 (2003); see also Burchette v. State, 278 Ga. 1, 3, 596 S.E.2d 162 (2004) (holding that a portion of the trial court’s Allen charge to the jury was inaccurate and should no longer be given, but affirming Burchette’s conviction).

 2. Within one year of the date upon which the sentence is imposed, or within 120 days after receipt by the sentencing court of the remittitur upon affirmance of the judgment after direct appeal, whichever is later, the court imposing the sentence has the jurisdiction, power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed.

         OCGA § 17-10-1(f).


Aug 13 14

Proper Substitution of Counsel

by merlin

This is not the entry that I intended to do earlier, but I have learned something and I know I need to share it with my readers, because it was NOT something I was aware of at all, and it is also something I know many other attorneys do not know, either.

In Georgia, for a Substitution of Counsel to be effective, it must be signed BOTH by the new attorney AND by the person themselves.  Otherwise, it will only add the name of another attorney to the list (and that previous attorney will still be on the hook for the representation, which certainly puts us at a disadvantage).

For your reference, the text of Georgia Uniform Superior Court Rule 4.3 on Withdrawal is below:

(1) An attorney appearing of record in any action pending in any superior court, who wishes to withdraw as counsel for any party therein, shall submit a written request to an appropriate judge of the court for an order of court permitting such withdrawal. Such request shall state that the attorney has given due written notice to the affected client respecting such intention to withdraw 10 days (or such lesser time as the court may permit in any specific instance) prior to submitting the request to the court or that such withdrawal is with the client’s consent. Such request will be granted unless in the judge’s discretion to do so would delay the trial of the action or otherwise interrupt the orderly operation of the court or be manifestly unfair to the client. The attorney requesting an order permitting withdrawal shall give notice to opposing counsel and shall file with the clerk in each such action and serve upon the client, personally or at that client’s last known address, a notice which shall contain at least the following information:

(A) That the attorney wishes to withdraw;

(B) That the court retains jurisdiction of the action;

(C) That the client has the burden of keeping the court informed respecting where notices, pleadings or other papers may be served;

(D) That the client has the obligation to prepare for trial or hire other counsel to prepare for trial when the trial date has been set;

(E) That if the client fails or refuses to meet these burdens, the client may suffer adverse consequences, including, in criminal cases, bond forfeiture and arrest;

(F) The dates of any scheduled proceedings, including trial, and that holding of such proceedings will not be affected by the withdrawal of counsel;

(G) That service of notices may be made upon the client at the client’s last known address, and,

(H) If the client is a corporation, that a corporation may only be represented in court by an attorney, that an attorney must sign all pleadings submitted to the court, and that a corporate officer may not represent the corporation in court unless that officer is also an attorney licensed to practice law in the state of Georgia;

(I) Unless the withdrawal is with the client’s consent, the client’s right to object within 10 days of the date of the notice.

The attorney seeking to withdraw shall prepare a written notification certificate stating that the above notification requirements have been met, the manner by which such notification was given to the client and the client’s last known address and telephone number. The notification certificate shall be filed with the court and a copy mailed to the client and all other parties. The client shall have 10 days prior to entry of an order permitting withdrawal or such lesser time as the court may permit within which to file objections to the withdrawal. After the entry of an order permitting withdrawal, the client shall be notified by the withdrawing attorney of the effective date of the withdrawal; thereafter all notices or other papers may be served on the party directly by mail at the last known address of the party until new counsel enters an appearance.

(2) When an attorney has already filed an entry of appearance and the client wishes to substitute counsel, it will not be necessary for the former attorney to comply with rule 4.3(a). Instead, the former attorney may file with the clerk of court a notice of substitution of counsel signed by the party and the former attorney. The notice shall contain the style of the case, the name, address, phone number and bar number of the substitute counsel. A copy of the notice shall be served on the substitute counsel, opposing counsel or party if unrepresented, and the assigned judge. No other or further action shall be required by the former attorney to withdraw from representing the party. The substitution shall not delay any proceeding or hearing in the case.

The notice may be in substantially the following form:









FILE NO. 99-CV-0000


Please substitute (name of substitute counsel) as counsel for (name of party) in this case.

Substitute counsel’s address, phone number and bar number are as follows: ________

All further pleadings, orders and notices should be sent to substitute counsel.

This_day of_,_.

signature signature

Name of former attorney Name of party

Address Address Phone number Phone number



Your attention is drawn to paragraph (2).  It contains a typographical error, referring to paragraph (a), but it appears intended to refer to paragraph (1), instead.  More importantly, note that it places a burden on the attorney that previously represented the person to file a notice with the Clerk of Court stating affirmatively that they no longer represent the person because of a substitution of counsel, and have that affirmative notice signed by the person themselves.