Moreau v. Klevenhagen
| Citation | 956 F.2d 516 |
| Decision Date | 31 March 1992 |
| Docket Number | No. 90-2833,AFL-CIO,90-2833 |
| Parties | 30 Wage & Hour Cas. (BNA) 1438, 121 Lab.Cas. P 35,619 Lynwood MOREAU, Individually, as President of the Harris County Deputy Sheriff's Union, Local 154, IUPA,, and as FLSA Representative of 37 Similarly Situated consenting Harris County Law Enforcement Officers, et al., Plaintiffs-Appellants, v. Johnny KLEVENHAGEN, et al., Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Michael T. Leibig, Monica C. Yriart, Zwerdling, Paul, Leibig, Kahn, Thompson & Driesen, Washington, D.C. and Richard H. Cobb, Houston, Tex., for plaintiffs-appellants.
Ann Hardy, Asst. County Atty., Houston, Tex., for defendants-appellees.
Appeal from the United States District Court For the Southern District of Texas.
Before WILLIAMS, WIENER, Circuit Judges, and LITTLE, District Judge *.
A deputy sheriffs' union appeals the district court's grant of summary judgment in favor of Harris County, Texas on all three of the union's claims under the Fair Labor Standards Act (FLSA). We affirm the grant of summary judgment on two of those claims. But finding that the union was misled by the district court's bifurcation of the case and was thereby prevented from presenting adequate summary judgment proof on the third claim, we reverse and remand to the district court for further proceedings with respect to that claim.
On April 15, 1988, Eugene T. Merritt, Jr. brought suit individually and as President of the Harris County Deputy Sheriffs Union 1 (the Union), together with approximately 400 other Harris County Deputy Sheriffs, against Harris County and Sheriff Johnny Klevenhagen (collectively, the "County"). The complaint alleged that the County violated the FLSA by (1) failing to pay cash in lieu of compensatory time for overtime work in the absence of an agreement with the plaintiffs' designated representative (the comp time claim); (2) failing to include longevity pay in the plaintiffs' "regular rate of pay" for overtime payment calculations (the longevity claim); and (3) excluding non-mandated firearms qualification time from the calculation of number of hours worked (the firearms qualification claim). The district court denied the Union's motion for partial summary judgment and granted summary judgment in favor of the County on all three claims.
Under the Harris County pay system, deputy sheriffs receive compensatory time as overtime compensation at one and a half times the normal pay rate. When a deputy's bank of comp time reaches 240 hours, the deputy receives compensation in cash for overtime at the hourly rate, based on the deputy's "base pay rate." Each of the deputies in this action designated the Union as his or her representative. The County instituted its pay system without an agreement with the Union.
The Union's claim alleges that the County's pay system violates Section 207(o ) of FLSA, which provides in part:
(2) A public agency may provide compensatory time under paragraph (1) only--
(i) applicable provisions of a collective bargaining agreement, memorandum of understanding or any other agreement between the public agency and representatives of such employees; or
(ii) in the case of such employees not covered by subclause (i), an agreement or understanding arrived at between the employer and employee before the performance of work....
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In the case of employees described in clause (A)(ii) hired prior to April 15, 1986, the regular practice in effect on April 15, 1986, with respect to compensatory time off for such employees in lieu of the receipt of overtime compensation, shall constitute an agreement or understanding under such clause (A)(ii). 2
The County's current pay system was the "regular practice in effect" on April 15, 1986. Each deputy signed a payroll compensation form that stated that the deputy The Union asserts that as the deputies in this case have designated the Union as their representative, under Section 207(o )(2)(A)(i) the County has no authority to pay deputies for overtime in comp time, even if the deputies elect to be paid in comp time, unless the County has entered into an agreement with the Union to that effect. The Union relies on the Tenth Circuit's decision in International Ass'n of Fire Fighters, Local 2203 v. West Adams County Fire Protection Dist. 3 In that case, the Tenth Circuit analyzed the Department of Labor regulations interpreting Section 207(o ) and held that (1) if employees have a representative, an employer may pay comp time in lieu of cash only pursuant to an agreement between the employer and the representative, and (2) employees are deemed to have a representative by merely designating a representative, whether or not the employer recognizes the representative. The Union argues that under West Adams, as the deputies had designated the Union as their representative, the County could not pay comp time in the absence of an agreement with the Union.
understood and accepted the County's personnel regulations, which set forth the terms of the pay system.
We find the Union's argument unpersuasive. TEX.REV.CIV.STAT.ANN. art. 5154c prohibits any political subdivision from entering into a collective bargaining agreement with a labor organization unless the political subdivision has adopted the Fire and Police Employee Relations Act. Harris County has not adopted that Act; thus, under article 5154c the County has no authority to bargain with the Union. In light of that Texas statute, it is not West Adams but two other circuit court decisions, one from the Fourth Circuit 4 and another from the Eleventh Circuit, 5 that are instructional in the disposition of this case.
In Abbott v. City of Virginia Beach, 6 the Fourth Circuit held that neither FLSA nor the regulations implementing it showed any intent to preempt state laws prohibiting cities from entering into collective bargaining agreements. 7 As Virginia law had such a prohibition, and as the pay system in Virginia Beach gave individual police officers an absolute choice of receiving either comp time or cash for overtime work, the Fourth Circuit held that the pay system, which was not the result of an agreement between the city and the officers' designated representative, did not violate FLSA. 8
In Dillard v. Harris, 9 the Eleventh Circuit agreed with the analysis in Abbott and went on to discuss an alternative approach that led to the same result. In Dillard, as in Abbott and the instant case, (1) the employees had designated a representative, (2) state law prohibited the city from entering into a collective bargaining agreement, and (3) the city, without an agreement with the employees' representative, had established a pay system providing for comp time. The city employees argued that, as they had designated a representative, the city could not pay them in comp time in the absence of an agreement with their representative. The Dillard court held that under the plain language of Section 207(o )(2)(A), the prerequisite for coverage under subclause (i) was the existence of an agreement between the city and the representative, rather than the existence of the representative. 10 Thus, held the court, even though the employees had designated a representative, subclause (ii) rather than subclause (i) applied because there was no agreement between the city and the representative Joining our colleagues of the Fourth and Eleventh Circuits, we hold that, because Texas law prohibits the County from entering into a collective bargaining agreement with the Union--and thus there is no such agreement--the deputies are not covered by subclause (i) of Section 207(o )(2)(A). Rather, subclause (ii) of that section applies. Under Section 207(o )(2)(B), the County's pay system, which was in effect on April 15, 1986, constituted an agreement between the County and deputies hired prior to that date. For deputies hired after April 15, 1986, the individual compensation form signed by each deputy constituted individual agreements of the type contemplated by Section 207(o )(2)(A)(ii). Thus, the County has complied with Section 207(o ) and the payment of comp time in lieu of cash is proper.
under subclause (i). 11 The court held that as the employees were hired before April 15, 1986, and as the city's practice before that date was to give comp time in lieu of cash, that practice constituted an agreement under subclause (ii), and was permissible under Section 207(o )(2)(B). 12
Nevertheless, the Union argues that, even in light of the Texas law that prohibits political subdivisions from entering into collective bargaining agreements, the County was still required to enter into an agreement with the Union before it could pay deputies in comp time. The Union contends that under Section 207(o ) comp time may be authorized pursuant to agreements that are not classified as collective bargaining agreements, thus not violating Texas law. Section 207(o )(2)(A)(i) provides that a public agency may provide comp time pursuant to:
[A]pplicable provisions of a collective bargaining agreement, memorandum of understanding, or any other agreement between the public agency and representatives of such employees (emphasis added).
The Union asserts that it represents the deputies in a non-collective bargaining capacity and that any agreement between the Union and the County would be classified as "any other agreement" under Section 207(o ), not in violation of Texas law. The Union also cites TEX.REV.CIV.STAT.ANN., art. 5154c Section 6, which recognizes the right of public employees to present grievances through a "representative" such as the Union, and argues that under that statute, the Union is allowed to deal with the County in a non-collective bargaining capacity.
We reject this argument. Presentation of grievances is acceptable under Texas law because it is a unilateral...
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