(dissenting).
The Administrator, on petition for rehearing, now shows that his exhibit from which were deduced the computations made the sole basis for reversal here was a selected one “to include every week in which the guarantee was paid for 40 hours or less in order to illustrate the situations in which •the payment of the guarantee could not be attributed to ‘overtime.’ ” That the exhibit was thus compiled to show only the departures from the standard, leaving the large bulk o'f the workweeks quite unconsidered, 'necessarily means that the computations are even more inaccurate and misleading than *6791 pointed out in my original dissent. This the defendant substantially concedes in its reply, arguing that the decision should rest upon more general grounds. The Administrator goes on to state: “The complete records would disclose that approximately 2 per cent, rather than 211 *per cent, of the workweeks were of less than 40 hours.” Hence, unlike the Bclo situation, the departures from the norm were quite negligible. We should recall that this issue was not tried or considered below,2 and only came into the case via the opinion, seemingly in response to the Administrator’s suggestion, quoted in my dissent, of “a regularity of normal working hours” readily adjustable to the statutory policy. The Administrator’s present request for a return of the case to demonstrate these facts yet more conclusively seems therefore a very modest one indeed. Appellate fact finding is dubious at best; it becomes dangerous when it is indulged in as a surprise to the parties; it takes on elements of the fantastic when it is persisted in against a showing of quite contrary facts.
Or 20%, according to the later modification of the opinion.
There was no occasion to do so, since the Halliburton Oil case, reaffirming the Belo ease, had not then been decided.