Brock et al v. City of Cincinnati

• Decision Date: 19 September 2000
• Docket Number: Nos. 99-3121,99-3584,s. 99-3121
• Citation: 236 F.3d 793
• Parties: (6th Cir. 2001) Lonnie Brock, et al., Plaintiffs-Appellees/Cross-Appellants, v. City of Cincinnati; John Shirey, City Manager, Defendants-Appellants/Cross-Appellees. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 793

236 F.3d 793 (6th Cir. 2001)

Lonnie Brock, et al., Plaintiffs-Appellees/Cross-Appellants, v. City of Cincinnati; John Shirey, City Manager, Defendants-Appellants/Cross-Appellees.

Nos. 99-3121, 99-3584

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: September 19, 2000

Decided and Filed: January 19, 2001

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 97-00134, Herman J. Weber, District Judge. [Copyrighted Material Omitted] Stephen S. Lazarus, HARDIN LEFTON LAZARUS & MARKS, Cincinnati, Ohio, for Appellee/Cross-Appellant.

John Williams, Roshani Hardin, CITY SOLICITOR'S OFFICE FOR THE CITY OF CINCINNATI, Cincinnati, Ohio, for Appellants.

Before: BOGGS, SUHRHEINRICH, and GIBSON, Circuit Judges^*.

OPINION

BOGGS, Circuit Judge.

This case involves a claim by twelve canine-handling Cincinnati policemen for back pay and damages stemming from the City's alleged failure to pay the officers adequate compensation at the overtime rate for canine-care work performed at home while off duty, in violation of the Fair Labor Standards Act (FLSA). The district court determined what would have been, in its estimation, a reasonable time for the officers to spend caring for their canines, then concluded that the parties' agreement to pay the officers straight-time compensation for approximately 17 minutes per day, seven days a week, was unreasonable. We conclude that the district court did not properly analyze how much of the officer's efforts amounted to FLSA "work" and did not consider all of the facts and circumstances of the parties' relationship in evaluating the fairness of the agreement. Because we conclude as a matter of law that the parties reached a reasonable agreement, and that the FLSA permits reasonable agreements fixing the amount of compensation in situations like this one, we reverse the district court's judgment as to nine of the ten prevailing plaintiffs and remand for further proceedings on the tenth prevailing plaintiff's claim.

I. FACTS AND PROCEDURAL HISTORY

Plaintiffs are twelve members of the Cincinnati Police Division who handle canines. Eleven work in the Canine Unit; the twelfth, Officer John Mercado, is assigned to a regional drug-control unit. Established in 1981, the Cincinnati Canine Unit has always been a volunteer assignment with applicants selected on the basis of their performance record and an at-home interview, which typically includes the entire family and neighbors. Candidates for canine-handler assignments undergo extensive training. They are responsible for the care and maintenance of the dog while off duty, although the Police Division encourages officers to perform many of their canine-care tasks during the eight-hour workday. Canine handlers' responsibilities include caring for, feeding, cleaning, grooming, exercising, training, and transporting their dogs on both regular work days and days off.

The officers testified that they devoted at least one hour per day, and sometimes much more than that, to dog-care activities while off-duty. The City has not issued a policy concerning how much time officers should spend training their dogs each day, nor has it imposed limits on how much time particular dog-maintenance tasks should take. Instead, the Police Division specifically recommended only two things: 1) that the dogs spend at least a couple of hours each day in an outdoor kennel at the handler's home, and 2) that any given activity not exceed five to ten minutes, the dogs' attention span.

Apart from these suggested limitations, canine handlers and their families enjoy a highly trained family pet largely at City expense. For years before the Supreme Court held the FLSA applicable to state and local governments, see generally Garcia v. San Antonio Metro. Trans. Auth., 469 U.S. 528 (1985), Cincinnati provided Canine Unit members a variety of benefits not given to other officers. Two ordinary working days per 28-day cycle are devoted to training, and officers get one eight-hour "dog day" per 28-day period, which is a day's worth of compensatory time to cover the off-duty, otherwise uncompensated, time spent caring for the dog. A canine officer has no out-of-pocket expenses associated with the dog: the Police Division pays for food and veterinary care and builds a professional-style kennel at the officer's home so that the dog can spend time in the weather developing a suitable coat. Officers are assigned a take-home, specialized police cruiser that they can use for any police-related activity¹. Finally, the officers regularly travel to police dog competitions, sometimes at City expense and often while on duty, to show their dogs and meet with handlers from around the country.

As early as 1985, the handlers discussed the possible application of the FLSA to their compensation package. In late 1987 or early 1988, the City's training officer, then-Sergeant now-Captain Michael Cotton, brought up the subject of the Canine Unit members' compensation with then-Lieutenant Colonel Ed Ammann, who stated that the City paid Unit members enough and advised that demands for more pay could cause the City to evaluate the economic feasibility of maintaining the Unit. Cotton also spoke informally to other supervisors, mentioning that other departments pay their canine officers more than Cincinnati, but the supervisors pointed out that some departments paid handlers less. Cotton apparently dropped the matter for some time.

Effective 1995, the compensation that Canine Unit members received for the care and maintenance of their dogs during off-duty hours became a provision in the Collective Bargaining Agreement (CBA) between the City and the Fraternal Order of Police (FOP). During negotiations, the City proposed that the new CBA include provisions memorializing the special canine compensation (and similar arrangements for the motorcycle and field training units) because, until then, the City had no formal authorization to pay the additional amounts. The FOP did not bargain with the Police Division over the "dog day" compensation, but checked with members to ensure that the proposal covered all previously paid benefits. At this time, at least some of the plaintiffs knew that the Unit's special compensation would appear in the new contract. One even discussed the effect of the proposal with an FOP Wage Committee member on two separate occasions before the union ratified the 1995-96 contract. The FOP representative reported that the bargaining unit would not press any demands for more compensation because the issue affected only a handful of the FOP's more than 1000 officers.

The handlers did not make the City or the police administration privy to their concerns during these negotiations. Under Ohio law, represented employees cannot bargain directly with their employers. See Ohio Rev. Code §4117.11(B)(3). Ohio law likewise requires public employers to deal with certified collective bargaining units and forbids them from dealing directly with employees. See Ohio Rev. Code §§ 4117.04(B), 4117.11(A)(5). The plaintiffs recognize that they should have raised any concerns about their compensation with their FOP representatives so that the union could address the administration on their behalf.

Cincinnati and the FOP negotiate CBAs approximately every other year. The first contract to memorialize the Canine Unit's special compensation, the 1995-96 agreement, contained 33 sections dealing with benefits for FOP members in addition to ordinary wages. Section 32 specified additional pay for Canine Unit members in the amount of four hours of straight-time pay per 14-day period, essentially converting the "dog day" previously allowed every 28 days to the CBA's 14-day cycle. In a subsequent round of negotiations, the FOP sought an increase in only one of seven special pay categories, that for the Motorcycle Unit. The district court found that, "[a]t no time during the negotiations for the '97-'98 labor agreement was the issue of canine compensation raised."

A few weeks after the '97-'98 negotiations ended, the officers filed a complaint seeking damages for violations of the FLSA. The district court denied cross-motions for summary judgment. Following a bench trial, the trial judge issued findings of fact and conclusions of law from the bench and later filed an order of judgment in favor of ten plaintiffs, awarding compensatory damages for the two years preceding the lawsuit and a matching amount of liquidated damages. Two Canine Unit members did not prevail, and all plaintiffs appealed².

Cincinnati's motion for summary judgment argued that the parties had reached a reasonable agreement as to work performed at home, which 29 C.F.R. § 785.23 recognizes as binding. The district court considered the question of whether the agreement was "reasonable" as intensely factual, because the regulation specifies that a "reasonable agreement" must "take[] into consideration all of the pertinent facts." The court noted that the plaintiffs' opposing memorandum argued that the amount actually paid under the agreement (2 hours per week) "bears no rational relationship to the amount of time Plaintiffs actually spend caring for their canine partners." Further, "[s]ignificant questions remained as to ...whether all the time [Plaintiffs] claim to have expended on canine care was reasonably necessary to promote Defendants' interests."

After the bench trial, the court issued findings of fact and conclusions of law. In reviewing FLSA caselaw, the district court appeared to reach the following conclusion:

What qualifies as compensable work under the FLSA is determined by whether the employee's activity is controlled or required by the employer, is necessarily and primarily for the benefit of the employer, and is an integral and indispensable part of the job. A reasonableness standard is inappropriate in deciding how many overtime hours for which a canine officer...