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FRANKFURTER, J., concurring.

a purely State ground in that there is a State remedy available, which has not been pursued, by means of which he can secure the rights he claims under the United States Constitution.

Of course I recognize the weight to be attached to the Attorney General's views regarding the law of California. But the controlling voice on California law is that of the Supreme Court of California. Whatever may be the elegancies of procedure by which the matter is to be determined, our decision declining to consider the grave constitutional issues which we thought we had before us, is contingent upon a determination by the Supreme Court of California that the law of that State is what our decision presupposes it to be, namely, that California by a remedy which California chooses to call mandamus enables the present petitioner to secure a judicial determination of his present sanity. This means, of course, not the very restricted scope of relief which is normally associated with the traditional remedy of mandamus. It presupposes that California affords petitioner the means of challenging in a substantial way the ex parte finding of the Superintendent of the State Hospital for the Insane and enables him to secure judicial determination of the claims he has made in his petition for habeas corpus which, so the Court now holds, is not the proper way to proceed.

Upon this view I concur in the decision and opinion. of the Court.

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BAY RIDGE OPERATING CO., INC. v. AARON ET AL.

NO. 366. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.*

Argued January 12, 1948.-Decided June 7, 1948.

A collective bargaining agreement between a longshoremen's union and employers, affecting employment in interstate and foreign commerce, provided for "straight time" hourly rates for work done during certain daytime hours on weekdays and "overtime rates," approximately 150% of "straight time" rates, for work done during all other hours and on Sundays and holidays. It made no provision for a differential in pay for work in excess of 40 hours per week. Longshoremen work irregular hours and frequently work for several different employers during a single week. Respondent longshoremen, some of whom had worked only outside "straight time" periods and had been paid "overtime rates," sued to recover additional overtime compensation allegedly due them under the Fair Labor Standards Act for work in excess of 40 hours per week. Held:

1. The "straight time" rate provided for by the agreement does not constitute the "regular rate" which § 7 (a) of the Fair Labor Standards Act requires to be used in computing the statutory minimum payment ("not less than one and one-half times the regular rate") for work in excess of 40 hours. Pp. 459–477.

2. Walling v. Belo Corp., 316 U. S. 624, distinguished. Pp. 462-463.

3. Contract declarations, even though the result of collective bargaining, are not conclusive as to what is the "regular rate" within the meaning of § 7 (a). Pp. 463–464.

4. Determination of the "regular rate" for each individual must be drawn from what happens under the employment contract. P. 464.

5. The "regular rate" is to be found by dividing the number of hours worked into the total weekly compensation received, less the amount of any "overtime premium." Pp. 464–465.

6. "Overtime premium," deductible from total compensation received in computing the "regular rate," is any additional sum

*Together with No. 367, Huron Stevedoring Corp. v. Blue et al., also on certiorari to the same court.

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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. Pp. 450, n. 3, 465– 471.

7. Where an employee receives a higher wage or rate because of undesirable hours or disagreeable work, such wage represents a shift differential rather than an overtime premium, and must enter into the determination of the "regular rate" of pay. The extra pay provided in "overtime" rates under the agreement in this case represents a shift differential and not an overtime premium. Pp. 466-471.

8. The fact that the contract "overtime" rates were designed to concentrate the work of the longshoremen in the straight time hours is irrelevant to the determination of the respondents' "regular rate" of pay. P. 470.

9. The purpose of the overtime compensation requirement of §7 (a) is not only to spread employment but also to compensate an employee in a specific manner for the strain of working longer than 40 hours. P. 470.

10. It is unnecessary in this case to determine what were respondents' "regular working hours," since regular working hours under a contract, even for an individual, have no significance in determining the rate of pay under the statute. Pp. 471-474.

11. Since the so-called "overtime" rates paid under the contract in this case actually represented a shift differential and had no relation to the number of hours previously worked during the week, their payment did not meet the requirements of § 7 of the Fair Labor Standards Act. Pp. 474 476.

12. Each respondent is entitled to receive compensation for his hours worked in excess of 40 at 12 times his regular rate, computed as the weighted average of the rates worked during the week. P. 476.

13. In computing the amount to be paid, the employer 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 of computing this credit and finding the exact amount due respondents is left to the District Court on remand. Pp. 476-477.

14. On remand, the District Court may consider any defense which the employers may have under the Portal-to-Portal Act, and may allow any amendments to the complaint or answer or any further evidence which the court may deem just. P. 477.

162 F.2d 665, modified and affirmed.

Opinion of the Court.

334 U.S.

Respondents sued petitioners to recover unpaid overtime compensation allegedly due under the Fair Labor Standards Act. To the extent that the judgment of the District Court was adverse, 69 F. Supp. 956, respondents appealed and the Circuit Court of Appeals reversed. 162 F.2d 665. This Court granted certiorari. 332 U. S. 814. Modified and affirmed, p. 477.

Assistant to the Attorney General Ford and Marvin C. Taylor argued the cause for petitioners. With them on the brief were Solicitor General Perlman, Herbert A. Bergson, Paul A. Sweeney and Harry I. Rand.

Monroe Goldwater argued the cause for respondents. With him on the brief were Max R. Simon and James L. Goldwater.

Nathan Baker filed a brief for Frank Adams, as amicus curiae, urging affirmance.

Briefs of amici curiae urging reversal were filed by Raymond S. Smethurst and Lambert H. Miller for the National Association of Manufacturers; Louis Waldman for the International Longshoremens Association; and Gregory A. Harrison, William Radner and Mary L. Schleifer for the Waterfront Employers Association.

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

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Opinion of the Court.

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."

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

152 Stat. 1060, 1063, approved June 25, 1938; §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 Co. v. Muscoda Local, 321 U. S. 590; Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680. Portal-to-Portal Act of 1947, 61 Stat. 84.

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).

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