DiNicola v. State of Oregon, Dep't of Revenue, 07C14758; A138659.

Citation246 Or.App. 526,192 L.R.R.M. (BNA) 3206,268 P.3d 632
Decision Date09 November 2011
Docket Number07C14758; A138659.
PartiesJoseph M. DINICOLA, Plaintiff–Appellant, v. STATE of Oregon, DEPARTMENT OF REVENUE, Defendant–Respondent.State of Oregon, Department of Revenue, Third–Party Plaintiff, v. Service Employees International Union Local 503, Third–Party Defendant.
CourtCourt of Appeals of Oregon

192 L.R.R.M. (BNA) 3206
246 Or.App.
526
268 P.3d 632

Joseph M. DINICOLA, Plaintiff–Appellant,
v.
STATE of Oregon, DEPARTMENT OF REVENUE, Defendant–Respondent.State of Oregon, Department of Revenue, Third–Party Plaintiff,
v.
Service Employees International Union Local 503, Third–Party Defendant.

07C14758; A138659.

Court of Appeals of Oregon.

Argued and Submitted March 15, 2011.Decided Nov. 9, 2011.


[268 P.3d 633]

Kevin T. Lafky, Salem, argued the cause for appellant. With him on the briefs was Lafky & Lafky.

Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

NAKAMOTO, J.

[246 Or.App. 528] Plaintiff is employed as a tax auditor in the Oregon Department of Revenue (Revenue). When he is working in that position, he is entitled under state and federal law to compensation at one and one half times his regular hourly rate for any work beyond 40 hours a week. He appeals a judgment that denied his claims against the state for overtime pay for the period that he was on release time from his job with Revenue and serving as the full-time president of his union, Local 503 of the Service Employees International Union (Local 503).1 We affirm.

I. FACTS AND PROCEDURAL BACKGROUND

Because the trial court granted the state's motion for summary judgment, we state the facts most favorably to plaintiff. Jones v. General Motors Corp., 325 Or. 404, 408, 939 P.2d 608 (1997). Plaintiff has worked for Revenue as a tax auditor since 1987. In August 1997, Revenue reclassified his position as nonexempt under the Fair Labor Standards Act (FLSA). Since then, he has received time and a half for all overtime that he has worked, except during the period

[268 P.3d 634]

from November 2004 through November 2008 when he was president of Local 503. While he was president, he worked substantially more than 40 hours a week on union matters.

Because the Collective Bargaining Agreement (CBA) between Local 503 and the state created plaintiff's right to release time from his job with Revenue while he was president of Local 503, we begin with it. Article 10 of the CBA provides several arrangements for compensating agency employees while they are engaged in union activities. Under sections 10 through 12, union stewards may use their regular work time to investigate and process employee grievances and to represent employees during investigatory interviews. The agency pays stewards at their regular rate for that time, and Local 503 has no obligation to reimburse the agency for [246 Or.App. 529] those payments. For its part, the agency has no obligation to pay stewards for work on grievances that they perform outside regular work hours. The first part of section 13 of Article 10 provides that stewards may also attend the annual stewards' conference, and that various other union officials and members may attend its annual meeting, by taking personal leave, vacation leave, or other leave to which they would be entitled without regard to their roles in the union.

These provisions assume that the union official remains primarily an agency employee who occasionally does union work or participates in union activities. The requirement that the agency pay stewards when they work on grievances during their regular working hours is known in labor relations terms as a “no-docking” provision. See Machinists Local # 964 v. BF Goodrich Group, 387 F.3d 1046, 1052–53 (9th Cir.2004) (describing no-docking provisions permitted under the National Labor Relations Act, 25 U.S.C. § 158(a)). It is the only such provision in the CBA. In all other circumstances, the CBA requires employees to use leave that they could otherwise use for other purposes if they wish for the state to pay them while they are on union business.

Unlike other state employees who occasionally participate in union affairs, as president of Local 503, plaintiff worked full time for the union. The second part of section 13 of Article 10 applies to his situation. It provides that the union president and the union business manager

“shall, at his/her request, be given release time from his/her position for a period not to exceed the term of his/her office for the performance of Union duties directly related and central to the collective bargaining relationship. * * * The Union shall, within thirty (30) days of payment to the President * * *, reimburse the State for payment of appropriate salary, benefits, paid leave time, pension, and all other Employer-related costs.”

Under the CBA, thus, plaintiff retained his existing position with Revenue, and all of its benefits, while he worked full time for Local 503. However, during the period he was on release time from Revenue, Local 503 bore the ultimate financial burden of his compensation by reimbursing Revenue for what Revenue paid plaintiff.

[246 Or.App. 530] In early February 2005, Local 503 and Revenue expanded on section 13 of the CBA by adopting Agreement # 1281 (the Agreement), which authorized release time for plaintiff as union president.2 The Agreement provided that plaintiff would “retain all rights, benefits and privileges of his current position and classification,” that his status would not change, and that he would “remain in his permanent classification.” Plaintiff would also receive any salary adjustments for which he was eligible, and he would be able to list his experience as president as part of his qualifications for future promotions. Although plaintiff would remain in his current classification and receive the compensation of that classification, and the Agreement required plaintiff to turn in time sheets to

[268 P.3d 635]

Revenue, Local 503 was obliged to “reimburse Revenue for payment of salary, benefits, paid leave time, pension and all other employer-related costs. All overtime, comp time earned and travel expenses will be reimbursed by [Local 503] to Revenue.” As a result of this provision, and consistently with the CBA, Revenue had no net expense arising from plaintiff's continuing status with it.

When plaintiff reviewed the Agreement before the parties signed it, he sent an e-mail to Local 503's business manager pointing out that as president he did not receive overtime and did not bill Revenue for his expenses. He suggested letting the issue go unless the business manager thought that it was necessary to point it out to Revenue. That portion of the draft Agreement remained unchanged in the final version.

During his terms as president, plaintiff worked an average of 60 to 65 hours a week. He kept accurate records of his time, which he provided to Local 503's business manager. However, at her instructions, he reported only 40 hours a week on the state timesheets that he turned in to Revenue. In accordance with the Agreement, the state paid him his regular compensation, including wage increases that [246 Or.App. 531] occurred during that period, and provided him with basic health and retirement benefits, and Local 503 reimbursed Revenue for those amounts. In addition, Local 503 paid plaintiff additional compensation of $400 a month and provided him with other benefits, such as a flexible medical benefit and a car allowance. During the four years that he was president of Local 503, plaintiff worked a total of nine hours for Revenue, all involving assisting Department of Justice lawyers on the resolution of one of his cases going to trial; otherwise, he worked exclusively for Local 503.

Plaintiff did not seek overtime compensation for his work with Local 503 until February 2007, shortly after his election to his second term. He testified that that was when he first concluded that he was entitled to overtime. At that time, he submitted revised timesheets to Revenue showing the hours that he had reported to Local 503. Revenue refused to pay him for the additional hours of work that he had performed for the union beyond 40 hours per week, as recorded on those timesheets. Plaintiff then filed this action against Revenue to recover overtime pay, asserting both statutory claims under the FLSA, 29 U.S.C. §§ 207, 216(b), and state wage and hour laws and common law contract, quasi-contract, and negligence claims.

The trial court granted Revenue's motion for summary judgment on all claims and denied plaintiff's cross-motion on the statutory and contract claims. The court wrote a comprehensive opinion primarily concerning the statutory claims, ruling that plaintiff was not Revenue's employee for purposes of overtime compensation and was an exempt employee while he was working as president of the union. The court also rejected plaintiff's argument that the CBA and the Agreement require that he be paid overtime wages as a nonexempt employee of Revenue. On the tort claims, the court found that plaintiff could not prevail because he did not rely on any representation by Revenue to his detriment and knew that he would not receive overtime pay as president of the union.

II. ANALYSIS

Plaintiff assigns error to the granting of Revenue's motion for summary judgment and the denial of his. Summary judgment is appropriate if there is no genuine issue of [246 Or.App. 532] material fact for trial, and the moving party is entitled to judgment as a matter of law. ORCP 47 C; Garrison v. Deschutes County, 334 Or. 264, 266, 48 P.3d 807 (2002). When the material facts are not in dispute, we review the trial court's rulings for errors of law. Oregon Southwest, LLC v. Kvaternik, 214 Or.App. 404, 413, 164 P.3d 1226 (2007), rev. den., 344 Or. 390, 181 P.3d 769 (2008).

At its heart, plaintiff's position is simple: Revenue employed him in a position in which he was entitled to overtime compensation; he remained in that position, although on release time, after he became president of Local 503; and he worked substantial overtime for which Revenue has not paid him. At the least, he...

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