DeBraska v. City of Milwaukee

• Decision Date: 19 June 1998
• Docket Number: No. 96-C-402.,96-C-402.
• Parties: Bradley DeBRASKA, et al., Plaintiffs, v. CITY OF MILWAUKEE, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

11 F.Supp.2d 1020

Bradley DeBRASKA, et al., Plaintiffs, v. CITY OF MILWAUKEE, Defendant.

No. 96-C-402.

United States District Court, E.D. Wisconsin.

June 19, 1998.

COPYRIGHT MATERIAL OMITTED

Michael T. Leibig, Zwerdling, Paul, Leibig, Kahn, Thompson & Wolly, Fairfax, VA, Laurie A. Eggert, Eggert & Edmonds, Milwaukee, WI, for Plaintiffs.

Rudolph M. Konrad, Deputy City Attorney, Stuart S. Mukamal, Assistant City Attorney, Milwaukee, WI, for Defendant.

DECISION AND ORDER

MYRON L. GORDON, District Judge.

Approximately fourteen hundred Milwaukee police officers and their union, the Milwaukee Police Association, IUPA, Local 21, AFL — CIO ["MPA"], have sued the City of Milwaukee ["the city"], alleging violations of the Fair Labor Standards Act ["FLSA"], 29 U.S.C. §§ 201-219.

Some of the plaintiffs' claims were resolved by stipulation and order in December, 1997. The parties agree that the remaining issues are the following: (1) whether the city has administered an unlawful compensatory time system; (2) whether the city has failed to credit officers for canine care and transportation time; (3) whether the city should pay police officers for their travel time between picking up a squad car and going to their assigned location; (4) whether the city unlawfully requires police officers who are on sick or injured leave to stay on "home confinement;" and (5) whether the city should pay police officers their off-duty appearances at pre-disciplinary meetings held on city premises.

Pending before the court are the defendant's motion to dismiss the MPA as a plaintiff, the defendant's motion to strike the plaintiff's proposed undisputed facts, the defendant's motion for partial summary judgment, and the plaintiffs' motion for partial summary judgment.

Defendant's Motion to Dismiss the MPA

The city claims that the police officer's union does not have standing to sue the city under the FLSA; the plaintiffs respond that the collective bargaining agreement between the city and the MPA is central to several of the issues. The plaintiffs also allege that while the MPA cannot recover damages in this action, it, as a public sector union, is a necessary party for the full and fair litigation of this action.

The FLSA specifically sets forth who has a "right of action" for certain violations of the Act:

An action to recover ... may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

29 U.S.C. § 216(b). This portion of the statute was amended by section 5 of the Portal-to-Portal Act of 1947, which was entitled "Representative Actions Banned." See EEOC v. AT & T Co., 365 F.Supp. 1105, 1120 n. 23 (E.D.Pa.1973), aff'd, 506 F.2d 735 (3d Cir.1974); see also Arrington v. National Broad. Co., 531 F.Supp. 498, 500-502 (D.D.C.1982) (describing, in great detail, the history of the 1947 Act). The FLSA had formerly allowed employees to designate a representative to maintain an action for them. Arrington, 531 F.Supp. at 501; AT & T, 365 F.Supp. at 1120.

Many courts have interpreted the legislative history of the Portal-to-Portal Act of 1947, and the explicit language of § 216(b), to preclude a union, as a representative of its members, from suing an employer under the FLSA. See State of Nevada Employees' Ass'n v. Bryan, 916 F.2d 1384, 1392 (9th Cir.1990) ("Although individual members of SNEA clearly have standing to bring this suit, the clear language and legislative history of § 16(b) indicate that SNEA itself cannot be a party in this action."); OTR Drivers v. Frito-Lay, Inc., 160 F.R.D. 146, 149 (D.Kan.1995) ("An action must be maintained by an individual employee or several employees. Thus, for example, a union may not bring an action on behalf of member employees.") (citations omitted); AFSCME v. Virginia, 1995 WL 913191, at *4 (W.D.Va. July 10, 1995); AFSCME v. Moore, 1992 WL 118742, at *1 (W.D.Mo. Feb.10, 1992) ("Decisions by federal courts applying and interpreting § 216(b) support defendants' argument that any remedies provided by § 216(b) flow exclusively to employees."); International Ass'n of Firefighters, Local 349 v. City of Rome, 682 F.Supp. 522, 533-34 (N.D.Ga. 1988); Arrington, 531 F.Supp. at 501 ("[T]he purpose of the ban on representative actions was to prevent large group actions, with their vast allegations of liability, from being brought on behalf of employees who had no real involvement in, or knowledge of, the lawsuit."); AT & T, 365 F.Supp. at 1120-21 ("Thus it is well-settled and beyond any doubt that a labor organization lacks standing to enforce the Section 206 rights of its members in a private action...."). But see International Ladies' Garment Workers' Union v. Donovan, 722 F.2d 795, 810 n. 22 (D.C.Cir.1983) (stating, in a FLSA case, that the defendants "do not, and could not reasonably, claim that the fact that manufacturers' associations and labor organizations are suing in a representative capacity presents additional complications in this case").

As mentioned above, the plaintiffs argue that the MPA is not suing in its representative capacity, but rather in its capacity as a party to the collective bargaining agreements at issue and as a party to a previous settlement agreement with the city. Both the collective bargaining agreements and the settlement agreement appear to be relevant; nevertheless, it does not change the fact that the MPA itself can receive no relief from this action, as it readily admits. That the terms of its collective bargaining agreement with the city may be affected is not enough to grant the union a right to sue under the FLSA. After all, the union entered into the collective bargaining agreement as a representative to the union, and as shown above, unions are not allowed to sue under the FLSA as a representative of its members. The MPA seems to be making a distinction between its representative capacity and its individual capacity where no distinction actually exists.

The plaintiffs cite Hopkins v. Montgomery County, AW-94-3018 (D.Md. Mar. 29, 1995) (unpublished) for the proposition that when a collective bargaining agreement is at issue, the union is a necessary plaintiff. First, unpublished decisions, especially those from another circuit, have no precedential value. I only mention this case because the police officers rely so heavily on it. Second, in the Hopkins order, the court only joined the union "as a non-aligned party for the limited purposes of participating in settlement discussions and assuring that the Defendants are not subject to conflicting obligations as a result of this suit." Id. (emphasis added). The court also noted that it was the defendants who were seeking to add the union as a party. Id.

The police officers and MPA also argue that Congress' 1985 amendments to the FLSA enlarge the role of a public sector union in FLSA litigation. One of these amendments affected a public employer's providing compensatory time, in lieu of overtime, one of the issues present in this case. This compensatory time structure is governed by 29 U.S.C. § 207(o)(2), which provides that a public agency may provide compensatory time only when it is pursuant to the provisions of a collective bargaining agreement or "any other agreement between the public agency and representatives of such employees" or when there is an individual agreement between the employer and employee. See also Moreau v. Klevenhagen, 508 U.S. 22, 23-25, 113 S.Ct. 1905, 123 L.Ed.2d 584 (1993) (describing this 1985 amendment to the FLSA).

I agree with the plaintiffs that this compensatory time provision increases the role of a union in a public employer's compliance with the FLSA. I do not agree, however, that this provision requires the union to be a party in the litigation. The MPA is not demanding that the city comply with the agreement. Indeed, the union's joint complaint with the police officers states that a provision of its agreement regarding of the granting of compensatory time does not comply with the FLSA. (Compl.¶ 15.) The MPA's status as a plaintiff therefore seems inconsistent. Moreover, when Congress amended the compensatory time provision regarding public sector employees, it did not amend the "right of action" section mentioned above.

The plaintiffs cite several cases for the proposition that courts routinely require participation of public sector unions in litigation. In most of these cases, however, the courts simply allowed, without discussion, the unions to proceed as plaintiffs, and it does not appear that the defendant objected to their participation. See Atlanta Professional Firefighters Union, Local 134 v. City of Atlanta, 920 F.2d 800 (11th Cir.1991); International Ass'n of Fire Fighters, Local 2141 v. City of Alexandria, 720 F.Supp. 1230 (E.D.Va.1989), aff'd, 912 F.2d 463 (4th Cir. 1990) (unpublished); Service Employees Int'l Union, Local 102 v. County of San Diego, 784 F.Supp. 1503 (S.D.Ca.1992), rev'd on other grounds, 35 F.3d 483 (9th Cir.1994), superseded, 60 F.3d 1346 (9th Cir.1994), cert. denied, 516 U.S. 1072, 116 S.Ct. 774, 133 L.Ed.2d 726 (1996).

Indeed, the plaintiffs have only provided one case in which a court explicitly found that a public-sector union was an appropriate plaintiff. That court, though, engaged in very little discussion. Citing 29 U.S.C. § 207(o), the court noted that the union wanted to sue "to enforce its own rights" and that "given the language of § 207(o) itself, a union or representative would be a logical plaintiff to bring an action." AFSCME v. Colorado, 1994 WL 739417, at *1 (D.Colo. Aug.10, 1994). This one case does not persuade me that the court should allow MPA to be a...