Bodie v. City of Columbia, S.C., 89-3229

• Decision Date: 21 June 1991
• Docket Number: No. 89-3229,89-3229
• Citation: 934 F.2d 561
• Parties: 30 Wage & Hour Cas. (BN 584, 119 Lab.Cas. P 35,505, 119 Lab.Cas. P 35,516, 119 Lab.Cas. P 35,527 Alvin S. BODIE, Plaintiff-Appellant, v. The CITY OF COLUMBIA, SOUTH CAROLINA, Defendant-Appellee, Secretary of Labor, Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 561

934 F.2d 561

30 Wage & Hour Cas. (BN 584, 119 Lab.Cas. P 35,505,

119 Lab.Cas. P 35,516, 119 Lab.Cas. P 35,527

Alvin S. BODIE, Plaintiff-Appellant, v. The CITY OF COLUMBIA, SOUTH CAROLINA, Defendant-Appellee, Secretary of Labor, Amicus Curiae.

No. 89-3229.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 2, 1990.

Decided June 4, 1991.

As Amended June 21, 1991.

Thomas Aquinas Woodley, Mulholland & Hickey, argued, Washington, D.C. (Gregory K. McGillivary, Mulholland & Hickey, on the brief, Washington, D.C.), for plaintiff-appellant.

Julian Heyward Gignilliat, Gignillait, Savitz & Bettis, argued, Columbia, S.C. (Linda Pearce Edwards, Vance J. Bettis, Gignilliat, Savitz & Bettis, on the brief, Columbia, S.C.), for defendant-appellee.

Jerry G. Thorn, Acting Sol. of Labor, Monica Gallagher, Associate Sol., Linda Jan S. Pack, counsel for appellate litigation.

Leif G. Jorgenson, U.S. Dept. of Labor, Washington, D.C., for amicus curiae.

Before ERVIN, Chief Judge, DONALD RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, WILKINSON, WILKINS, and NIEMEYER, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

While styled as one for a declaratory judgment, this suit is actually a simple action under the Fair Labor Standards Act ("Act"), 29 U.S.C. Secs. 201 et seq., to recover overtime pay for "sleep time" by a municipal government firefighter. The defendant municipality, City of Columbia, South Carolina ("City"), defended on the ground that under special sections of the Act and regulations thereunder, "sleep time" of firefighters such as the plaintiff, operating under a work schedule meeting the formula set forth in 29 C.F.R. Sec. 553.222(c), was excluded in calculating work time for overtime pay, provided the firefighter agreed directly or impliedly to such exclusion. The plaintiff firefighter in this case, Alvin S. Bodie, denied he had so agreed and therefore seeks overtime pay for such sleep time. The district judge found that the plaintiff firefighter had by his action and conduct implied agreement to the exclusion and dismissed the action. We affirm. ¹

I.

Originally, the Fair Labor Standards Act exempted from its coverage employees of States, state agencies, and public municipalities. Gradually, however, Congress chipped away at this broad exemption by making the Act applicable to select groups of state and municipal employees. Finally, in 1974, the Act was extended to cover all employees of the States and state subdivision agencies, subject to some very discrete classes of such employees for whom unique conditional exemptions were granted. Among those discrete classes partially exempted were employees engaged in fire protection activities. 29 U.S.C. Sec. 207(k). In providing this partial exemption for firefighters, Congress introduced the term "tour of duty," which "is a unique concept applicable only to employees for whom the section 7(k) exemption is claimed," and which "means the period of time during which an employee is considered to be on duty for purposes of determining compensable hours." 29 C.F.R. Sec. 553.220(a). ² Later, in 29 C.F.R. Sec. 553.222(c), it was provided that "sleep time" of a firefighter could be excluded from his "tour of duty" as work time, provided he is on a tour of duty of more than 24 hours, and "if there is an expressed or implied agreement between the employer and the employees to exclude such time."

In 1976, the Supreme Court held that the Commerce Clause would not sustain the application of the Act to State or state subdivision employees. National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). For some time after Usery, States and their subdivisions considered themselves immune from the requirements of the Act. However, in 1985, the Supreme Court reversed Usery and reinstated the Congressional extension of the Act to State employees, ³ returning to largely the procedure used after the enactment of the 1974 Amendments and prior to the decision in Usery. States and local public agencies at that point generally adjusted their work schedules or "tours of duty" for firefighting employees to meet the requirements for the partial exemption given by 29 U.S.C. Sec. 207(k) for such employees. Thus, on June 10, 1985, the defendant City of Columbia changed the work schedule of its firefighters from tours of duty of 24 hours followed by two days off, to tours of duty of 24 hours and 15 minutes followed by two days off.

In October 1985, some four months after the City had changed the work schedule for its firefighters and after the City's firefighters had been working and receiving compensation under the revised work schedule, thirty-six of the City's firefighters wrote identical letters to the City Manager stating that they did not "consent" to the revision and particularly that they did not consent to the exclusion of their sleep time as noncompensable hours of work. The City responded by restating its intention to follow the new work schedule and enclosed written letters of "Agreement of Consent" to the new work schedule and to the exclusion of their sleep time as compensable work time. The City's response added that, if the Agreement was not signed and returned by a fixed time, the protesting employee would be terminated. All the protestors signed the agreement and continued to work for the City.

The plaintiff Bodie was out of town when the protestors sent their letters protesting the new work schedule and the denial of sleep time as work time. He claimed he would have protested had he been present when the others mailed their written protest. However, he did not join in the protest, nor did he protest until after his retirement, when he filed this suit.

II.

The single issue posed by this suit is whether the City properly excluded "sleep time" from the compensable hours of work of its firefighters such as the plaintiff. It is undisputed that the City of Columbia had the right to exclude "sleep time" from the plaintiff's compensable work time under the Act, but only if (1) the employee firefighter had been on a tour of duty of "more than 24 hours" and (2) the employee had agreed directly or impliedly to the "sleep time" exclusion. There seems to be no dispute that the first condition had been complied with by the City. The controversy, therefore, relates entirely to the second condition for the exclusion, i.e., whether the plaintiff had either expressly or impliedly agreed to the exclusion. The City urges that the plaintiff's voluntary acquiescence in the new schedule, with its exclusion of sleep time from his compensable work period, for almost two years without the slightest protest, constituted an implied agreement to the exclusion of sleep time as compensable work time. The district court agreed with the City and found that the plaintiff had impliedly agreed to the exclusion of sleep time.

III.

We agree with the district court. We are of the firm opinion that the plaintiff here impliedly agreed to the work schedule promulgated by the City on June 10, 1985, and was accordingly not entitled to recover for "sleep time" as compensable work time in any work period subsequent to that date. The district court cited precedents, stretching back over almost half a century, all involving claims to overtime pay under the Act, clearly sustaining the result reached by it. We find those authorities apposite. In the latest of these cases sustaining the district court's decision, the plaintiffs-employees were employed on derrick barges operating in offshore oil operations. Rousseau v. Teledyne Movible Offshore, Inc., 805 F.2d 1245 (5th Cir.1986), cert. denied, 484 U.S. 827, 108 S.Ct. 95, 98 L.Ed.2d 56 (1987). In the oil boom of the 1970s, the derrick barges spent most of their time offshore on various jobs. In the periods between jobs when they were not on "active labor," the employees were required to remain aboard the barges but were paid only for the time spent in active labor. When conditions in offshore drilling became depressed, the barges spent more time on dock, but "even when the barges were docked, the employees were required to remain on board the barges during their off-duty time" without any compensation. Id. at 1247. The employees protested being uncompensated for this off-work time during which they were required to remain on the barge on dock. ⁴ The Court found that, whether this "off-work" time on dock when the employees were required to remain on the barges was to be compensable work time under the Act was a matter requiring agreement thereto on the part of the plaintiff. It held that the evidence established an implied agreement, saying:

The record supports the district court's finding of an agreement between Teledyne and the employees. Representatives of Teledyne testified to informing the employees of the policy at various times. Indeed, many of the employees who testified admitted at least some awareness of the policy.

Of course, it is clear that the employees did not like the no leave rule. But their dislike does not negate the existence of an agreement. As the district court pointed out, continuance of employment can be evidence of an implied agreement to the terms of that employment. Shepler v. Crucible Fuel Co., 140 F.2d 371, 374 (3rd Cir.1949 [sic].

Id. at 1248.

Rousseau cited the same case which the district court here relied on, Shepler v. Crucible Fuel Co., 140 F.2d 371 (3d Cir.1944). In that case, the employer's work schedule for its employees would have increased considerably their overtime pay. The employer revised its work schedule and pay so that, even with the Act, the pay of the employee "when calculated with the normal overtime would not yield more than the amount they [the employees] had been receiving on the weekly basis." Id. at 373. The question was, as here, whether the change had been agreed to by the employees. The Court, relying on Williams v. Jacksonville Terminal Co., 315 U.S. 386, 62...