City of San Antonio v. Aguilar

• Citation: 696 S.W.2d 648
• Decision Date: 31 July 1985
• Docket Number: No. 04-83-00401-CV,04-83-00401-CV
• Parties: CITY OF SAN ANTONIO, Appellant, v. Ernest R. AGUILAR and Florence Acquart, et al., Appellees.
• Court: Court of Appeals of Texas

Page 648

696 S.W.2d 648

CITY OF SAN ANTONIO, Appellant, v. Ernest R. AGUILAR and Florence Acquart, et al., Appellees.

No. 04-83-00401-CV.

Court of Appeals of Texas,

San Antonio.

July 31, 1985.

Rehearing Denied Sept. 25, 1985.

Crawford B. Reeder, Asst. City Atty., San Antonio, for appellant.

Harry A. Nass, Jr., San Antonio, for appellees.

Before CADENA, C.J., and BUTTS and REEVES, JJ.

OPINION

BUTTS, Justice.

This is a municipal labor contract dispute. Defendant City of San Antonio appeals from a judgment awarding plaintiffs Emergency Medical Technicians (EMTs) in the San Antonio Fire Department overtime back pay from November 15, 1974 to July 31, 1977, pursuant to the State Civil Service Act, TEX.REV.CIV.STAT.ANN. art. 1269p, § 6 (1963--1985 Pamp.Supp.). ¹ We affirm.

As in the companion case of Kierstead v. City of San Antonio, 643 S.W.2d 118, 119 (Tex.1982), these EMTs predicated their suit on the art. 1269p, § 6 normal work week provision for non-firefighters as a term implied by law in each of their contracts. A clear picture of the present case emerges when the historical background is reviewed. San Antonio EMTs filed three separate but identical suits: Kierstead, with six EMT plaintiffs, filed November 15, 1978; Aguilar, with 63 EMTs, also filed November 15, 1978; and Acquart, with 113 EMT plaintiffs, filed December 26, 1978.

However, only Kierstead went to trial and continued through the judicial appellate process. Following the Supreme Court opinion, and before trial in the present case, the trial court then granted a motion to consolidate Aguilar and Acquart and proceeded to hear the causes on stipulated evidence. It is without dispute that the claims of the Kierstead EMTs were exactly the same as those in this case. The pleadings are identical; only the names of the EMTs are different. The trial court so found in an unchallenged finding of fact.

The dispositive issue is whether this litigation is effectively foreclosed by the earlier decision in Kierstead, supra.

The critical issue in that case was the interpretation and application of art. 1269p, § 6 ² as a mandatorily implied contract term in light of the Fire and Police Employee's Relation Act, art. 5154c-1, § 20 (Vernon 1985) ³ (FPERA), that is, whether there results a waiver of the guarantee of a forty hour work week under art. 1269p, § 6 when a collective bargaining agreement controls as to wages and hours. The trial court and the court of appeals agreed there should be overtime awards for the early contracts, fiscal years 1975 through 1977, but denied any awards for fiscal year 1978 and fiscal year 1979 because of preemption by the collective bargaining agreements of those years.

Kierstead held that any right under art. 1269p, § 6 is waived by that provision of the FPERA, supra, when a work week is specifically mentioned in a collective bargaining agreement but not when the work week is ambiguously set out. In that instance, art. 1269p, § 6 would control for the term November 15, 1974 to July 31, 1977, providing for a "normal work week," where the collective bargaining agreement ambiguously set out what constituted a normal work week for the EMTs.

In ruling that the EMTs were entitled to overtime back pay for training periods also, the Supreme Court stated that art. 1269p, § 6:

[S]imply distinguishes between fire employees that fight fires and those that do not. Any kind of official work assignment that does not include firefighting and exceeds the regular 40 hour week is compensable as overtime unless there has been a waiver under a collective bargaining agreement. This is the plain meaning of the art. 1269p, § 6 substantive guarantee of maximal weekly hours as it is read within the context of collective bargaining rights....

Id. at 121.

The court was careful to point out that where the contracts were ambiguous (FY 1975, FY 1976, FY 1977), the trial court correctly read in art. 1269p, § 6 as a parol integration of an unwaived term of the contracts which triggered an overtime award. Further, the agreement by the EMTs in fiscal year 1978 and fiscal year 1979 to work a fifty-six hour week must reasonably be construed as a waiver of their art. 1269p, § 6 guarantee of a forty hour week. Id.

In the case at bar, the judgment in pertinent part states:

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2. All Plaintiffs are entitled to recover unpaid overtime pay for all hours worked in excess of 40 hours per week during the period beginning November 15, 1974 for all Plaintiffs in Cause No. 16,680 and beginning December 26, 1974 for all Plaintiffs in original Cause No. 78-CI-18460 and ending for all Plaintiffs, July 31, 1977, at an hourly rate of pay computed on the basis of each Plaintiff's bi-weekly rate of pay divided by eighty (80) then multiplied by 1.5.

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4. That all Plaintiffs herein are entitled to recover on the same basis as the Plaintiffs recovered in the companion cause of Kierstead vs. City of San Antonio, 643 S.W.2d 118 (Tex.1983).

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Additionally, the trial court filed extensive findings of fact and conclusions of law, which in pertinent part provide:

FINDINGS OF FACT

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5. All Plaintiffs herein have written contracts of employment with the City of San Antonio (Defendant), with said contracts being in existence from at least November 15, 1974 through July 31, 1977; and that such contracts consisted of the writings surrounding their employment including the work schedules and pay schedules applicable to their employment plus the terms of whatever collective bargaining contracts were in force during that time.

6. The written contracts of employment of all Plaintiffs herein are identical in every material respect with the Plaintiffs' contracts of employment in Kierstead vs. City of San Antonio, 643 S.W.2d 118 (Tex.1983).

7. The number of hours in the normal week of the majority of the employees of the City of San Antonio (Defendant), other than firemen and policemen, is forty (40) hours per week.

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10. During all of the time periods each of the Plaintiffs herein were assigned to the Emergency Medical Service, their assigned official duties did not include any duties of fire fighting and none of the Plaintiffs engaged in duties of fighting fires.

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28. Plaintiffs herein were uncompensated for overtime work for hours worked by them while performing duties as emergency medical technicians while being members of the fire department of the City of San Antonio in excess of forty (40) hours per work week in the amounts indicated for each Plaintiff on Plaintiffs' Exhibit No. 12.

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30. The City of San Antonio had full and fair opportunity in Kierstead vs. City of San Antonio to litigate all issues of fact and law.

31. The action in Kierstead vs. City of San Antonio was a judicial proceeding which resulted in a final judgment.

32. There is an identity of issues in this cause with the issues in Kierstead vs. City of San Antonio.

33. There is an identity of parties and their privies in this cause with the parties in Kierstead vs. City of San Antonio.

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41. The City of San Antonio (Defendant) has an established policy of determining an employee's rate of pay for regular hourly rate of pay and for the hourly overtime rate of pay for all hours worked in excess of forty (40) hours per work week by multiplying the employee's monthly rate of pay for the employee's job classification plus any longevity amounts by twelve (12) and then dividing that sum by twenty-six (26) to determine a bi-weekly rate of pay, and then dividing the bi-weekly rate of pay by eighty (80) to establish the employee's hourly rate of pay, and then to multiply that hourly rate of pay by one and one-half (1 1/2) to determine the employee's overtime rate of pay.

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CONCLUSIONS OF LAW

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12. The City of San Antonio is barred from re-litigating the issue of the applicability of Article 1269p V.A.C.S. to the contracts of employment, the hours of work without compensation for overtime, and the method of computation of overtime compensation for emergency medical technicians who are members of the fire department of the City of San Antonio and whose official work duties as emergency medical technicians did not include any duties of fire fighting for the City's fiscal years 1974-75, 1975-76, 1976-77, 1977-78 and 1978-79 by the doctrine of preclusion.

13. The City of San Antonio is barred from re-litigating the issues of the applicability of Article 1269p V.A.C.S. to the contracts of employment, the hours of work without compensation for overtime, and the method of computation of overtime compensation for emergency medical technicians who are members of the fire department of the City of San Antonio and whose official work duties as emergency medical technicians did not include any duties of fire fighting for the City's fiscal years 1974-75, 1975-76, 1976-77, 1977-78 and 1978-79 by the doctrine of res judicata.

14. The City of San Antonio is barred from re-litigating the issues of the applicability of Article 1269p V.A.C.S. to the contracts of employment, the hours of work without compensation for overtime, and the method of computation of overtime compensation for emergency medical technicians who are members of the fire department of the City of San Antonio and whose official work duties as emergency medical technicians did not include any duties of fire fighting for the City's fiscal years 1974-75, 1975-76, 1976-77, 1977-78 and 1978-79 by the doctrine of judicial estoppel.

15. The City of San Antonio is barred from re-litigating the issues of the applicability of Article 1269p V.A.C.S. to the contracts of employment, the hours of work without compensation for overtime, and the method of computation of overtime compensation for emergency medical technicians who are members of the fire department of the City of San Antonio and whose official work duties as emergency medical technicians...