Webster v. Public School Employees of WA.

• Decision Date: 18 April 2001
• Docket Number: No. 99-35085,99-35085
• Citation: 247 F.3d 910
• Parties: (9th Cir. 2001) JAY WEBSTER; JANET WEBSTER, husband and wife and the marital communitycomposed thereof, Plaintiffs-Appellants, v. PUBLIC SCHOOL EMPLOYEES OF WASHINGTON, INC., Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 910

247 F.3d 910 (9th Cir. 2001)

JAY WEBSTER; JANET WEBSTER, husband and wife and the marital communitycomposed thereof, Plaintiffs-Appellants, v. PUBLIC SCHOOL EMPLOYEES OF WASHINGTON, INC., Defendant-Appellee.

No. 99-35085

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted March 5, 2001

Filed April 18, 2001

David Utevsky, Daniel L. Thieme, and Alan K. Willert, Foster, Pepper & Shefelman, PLLC, Seattle, Washington, for the plaintiffs-appellants.

Michael J. Killeen and Jeffrey B. Youmans, Davis Wright Tremaine LLP, Seattle, Washington, for the defendant-appellee.

Appeal from the United States District Court for the Western District of Washington; Robert S. Lasnik, District Judge, Presiding. D.C. No. CV-98-00247-RSL.

Before: Harry Pregerson, Sidney R. Thomas, and Ronald M. Gould, Circuit Judges.

GOULD, Circuit Judge:

This case involves exemptions from state and federal over-time requirements for bona fide administrative employees. Jay Webster ("Webster") is a union field representative employed by the Public School Employees of Washington, Inc. ("PSE"). Webster negotiates collective bargaining agreements and handles grievances for "bargaining units" composed of local school district employees. Webster claims overtime pay under the federal Fair Labor Standards Act ("FLSA") and the State of Washington's Minimum Wage Act ("MWA"). The district court ruled on summary judgment that Webster was exempt from both federal and state overtime protection. We have jurisdiction pursuant to 28 U.S.C. 1291, and we affirm in part, vacate in part, and remand.

FACTS AND PROCEDURAL HISTORY ¹

PSE is a labor union representing Washington state public school employees who are not teachers or supervisors. Its members, referred to as "classified" employees of school districts, include bus drivers, clerical support workers, food service workers, ground maintenance employees, and teacher aides. PSE divides the state into regional areas known as "zones." Each zone contains bargaining units represented by PSE. PSE employs twenty field representatives to provide contract negotiation and administrative services to the bargaining units.

Webster has been employed by PSE as a field representative since 1984. Webster represents about 1,200 school district employees in Zone 9, an area encompassing five counties in the Olympic Peninsula, and in one large bargaining unit outside Zone 9.

The bargaining units are self-governing entities formed pursuant to PSE state bylaws. The primary role of the bargaining unit is the negotiation and enforcement of collective bargaining agreements. The bargaining units include members of the PSE union chapter and non-member fee-payers known as "objectors."

PSE's job description of field representative is a" highly responsible staff position that negotiates, administers, and enforces collective bargaining agreements for, and on behalf of, PSE members with school districts." The field representative "represents members on job related issues including grievances, disciplinary matters, and other situations involving wages, hours, and working condition disputes. "He or she "assists chapters in formulating goals, objectives, and operating procedures within the parameters of state and local bylaws."

Field representatives are themselves represented by a union, the Public School Employees Staff Organization. Field representatives do not generally participate in planning or management for PSE and do not negotiate agreements to which PSE is a party. PSE has a separate "Executive Team" and "Supervisory Team," which make and administer policy.

Webster spends most of his time negotiating collective bargaining agreements that determine the terms and conditions of employment for bargaining unit members. Webster regularly meets with members of a unit's negotiating committee to draft agreement proposals. Webster explains agreement proposals to rank-and-file members of the bargaining unit and at times submits proposals to school districts. School districts are represented by officials, such as superintendents or personnel directors, or by outside professional negotiators who are generally attorneys. After Webster and his bargaining team have negotiated a tentative agreement with the school district, Webster explains the agreement to bargaining unit members. Webster has authority to sign contract extension agreements, side letters, and interim agreements members have approved.

Webster's other main duty is handling bargaining unit members' grievances related to issues arising under the agreements. Webster acts as the members' advocate and representative through a review process that includes hearings before an employee's immediate supervisor, the school superintendent, and the local school board.

Webster is paid an annual salary of about $ 65,000 and expenses. Although Webster's hours vary from week to week, he presented evidence that he regularly works more than forty hours per week. Webster does some of his work at home, but spends most of the time on the road visiting the units he represents.

At least since 1995, PSE has required its field representatives to submit weekly timesheets showing the hours worked each day. If Webster works less than forty hours per week, PSE deducts or "docks" the deficiency, calculated in fifteen-minute increments, from his accrued sick leave and vacation time. Webster's sick leave has been docked many times for missing parts of work days without making up the time during the workweek. Under the collective bargaining agreement governing the terms of Webster's employment, unused vacation and sick leave can be "cashed out" by Webster at the termination of his employment or, under certain circumstances, during his employment.

Webster filed a complaint in the Superior Court of Washington for King County against PSE claiming overtime wages under the FLSA and the MWA. PSE removed the case to the United States District Court for the Western District of Washington, which had jurisdiction pursuant to 28 U.S.C. 1331. PSE moved for summary judgment, arguing that Webster was a bona fide administrative employee and exempt from both the FLSA and the MWA overtime pay provisions. Webster filed a cross motion for partial summary judgment, arguing that he was not an exempt employee because: (1) he performs production, not administrative, work for both PSE and the bargaining units; and (2) his sick and vacation leave could be docked for absences of less one day and therefore he was not paid on a "salary basis" under the FLSA and the MWA.

The district court granted PSE's motion for summary judgment, rejected Webster's motion for summary judgment, and dismissed the case. The district court ruled that Webster performed administrative work for the bargaining units and also concluded that Webster was paid on a salary basis under both the FLSA and the MWA. Webster appeals.

Standard of Review

A grant of summary judgment is reviewed de novo. Botosan v. Paul McNally Realty, 216 F.3d 827, 830 (9th Cir. 2000). Our review is governed by the same standard used by the trial court under Federal Rule of Civil Procedure 56(c). Adcock v. Chrysler Corp., 166 F.3d 1290, 1292 (9th Cir. 1999). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).

DISCUSSION

Webster claims that PSE owes him overtime compensation under the FLSA and the MWA.

I. The FLSA

We first address Webster's claim under the FLSA. The FLSA requires that employers ordinarily pay their employees time and one-half for work exceeding forty hours per work-week. 29 U.S.C. 207(a)(1). The FLSA provides an exemption from overtime for persons "employed in a bona fide executive, administrative, or professional capacity "and grants the Secretary of Labor broad authority to promulgate regulations to "define and delimit" the scope of the exemption. 29 U.S.C. 213(a)(1). An "employer who claims an exemption from the FLSA has the burden of showing that the exemption applies." Donovan v. Nekton, Inc., 703 F.2d 1148, 1151 (9th Cir. 1983) (per curiam). The FLSA "is to be liberally construed to apply to the furthest reaches consistent with Congressional direction. To that end, FLSA exemptions are to be narrowly construed against . . . employers and are to be withheld except as to persons plainly and unmistakenly within their terms and spirit." Klem v. County of Santa Clara, 208 F.3d 1085, 1089 (9th Cir. 2000) (internal quotation marks and citations omitted).

To prove Webster is exempt from overtime pay, PSE must establish that his employment meets the following requirements of the administrative exemption "short test "set forth in the Department of Labor ("DOL") regulations: (1) Webster is paid at least $ 250 per week; (2) Webster is paid on a "salary basis"; (3) Webster's work requires "the exercise [of] discretion and independent judgment"; and (4) Webster's primary duty consists of office "work directly related to management policy or general business operations of his employer or his employer's customers." 29 C.F.R. 541.2.

The first two parts of the short test are commonly referred to as the "salary basis test"; the last two parts are known as the "duties test."

The parties do not dispute that under the FLSA Webster's salary satisfies the first requirement of the short test and that Webster's work requires sufficient discretion and independent judgment to meet the third requirement. The parties dispute: (1) whether Webster's duties negotiating collective bargaining agreements and handling grievances satisfy the primary duties test; and (2) whether Webster is paid on a salary basis.

A. Duties Test

Webster claims that his work with the bargaining units does not meet the primary duties test under...