Ebright v. City of Whitehall

• Decision Date: 14 September 1982
• Citation: 8 Ohio App.3d 29,455 N.E.2d 1307
• Parties: , 26 Wage & Hour Cas. (BNA) 855, 8 O.B.R. 31 EBRIGHT et al., Appellees, v. CITY OF WHITEHALL, Appellant. *
• Court: Ohio Court of Appeals

Page 29

8 Ohio App.3d 29

455 N.E.2d 1307, 26 Wage & Hour Cas. (BNA) 855, 8 O.B.R. 31

EBRIGHT et al., Appellees, v. CITY OF WHITEHALL, Appellant. ^*

Court of Appeals of Ohio, Tenth District, Franklin County.

Sept. 14, 1982.

Syllabus by the Court

1. For an activity to be classified as "work" within the meaning of the Fair Labor Standards Act, the time consumed in performing the activity must involve: (1) a physical or mental exertion, whether burdensome or not; (2) the exertion is controlled or required by the employer; and (3) the exertion is pursued necessarily and primarily for the benefit of the employer and his business. (Jewell Ridge Coal Corp. v. Local No. 6167, U.M.W., 325 U.S. 161, followed.)

2. When a municipality requires its police officers to report to roll call fifteen minutes prior to the beginning of a shift and they are ready for duty and subject to inspection and are given instructions, information and assignments and are subject to disciplinary action for failure to attend, they are entitled to a wage rate of one and one-half times their wage rate for the time worked for roll call, which was in excess of forty hours in one week and eight hours in one day.

3. When a special statute and a general statute cover the same subject matter, the special statute covering the particular matter must be read as an exception to the general statute.

George C. Rogers, Whitehall, for appellees.

Ted Zwayer, Whitehall, for appellant.

STRAUSBAUGH, Judge.

This is an appeal from a judgment rendered in a class action by the Court of Common Pleas of Franklin County for plaintiffs, who are present and past police officers employed by defendant, city of Whitehall. Plaintiffs claimed that defendant violated R.C. 4111.03 and the codified ordinances of the city of Whitehall by failing and refusing to pay plaintiffs at a wage rate of one and one-half times their wage rate for the time worked for roll call, which was in excess of forty hours in one week and eight hours in one day.

The dispute involves a fifteen-minute period prior to the beginning of a shift when the police officers are required to report to roll call. The trial court found that this fifteen-minute period was conducted for defendant's benefit, on the requirement that the police officers must be ready for duty and subject to inspection. During this period they are given instructions, information and assignments, and are subject to disciplinary action for failure to attend.

The trial court found that plaintiffs were on duty during meal and coffee breaks based on the fact that no breaks were given without permission from the dispatcher; that the breaks were given based on the amount of activity at the time of the request; that officers were required to be uniformed during the break; that they are required to report where they are eating, and are often called to duty while on the break.

The trial court found that the plaintiffs had not waived their rights under overtime ordinances enacted over the last fifteen years by defendant. The trial court applied the statute of limitations set out in R.C. 2305.07 and held that judgment should be rendered for plaintiffs. Defendant filed a timely notice of appeal and raised the following assignments of error:

"I. The trial court erred when it failed to follow accepted and longstanding rules of statutory construction for the interpretation of the many salary ordinances.

"II. The trial court erred when it found that Whitehall police officers were working during meal periods, for purposes of receiving compensation under the Whitehall city salary ordinances.

"III. The trial court erred when it found that Section 2305.07 Ohio Revised Code was applicable, and that the statute of limitations had been waived.

"IV. The trial court erred when it found that plaintiffs had not waived their claim pursuant to a bargaining agreement, and furthermore were not estopped from this claim as a matter of law."

Overtime compensation for police officers exists only pursuant to the ordinances of the city of Whitehall as a result of Meeks v. Papadopulos (1980), 62 Ohio St.2d 187, 404 N.E.2d 159 .

The current salary provisions in Ordinance No. 43-79, and the language granting overtime compensation in the current ordinance, are identical to the language contained in all salary ordinances beginning with the first ordinance enacting overtime compensation for city employees in 1965. Ordinance No. 43-79 defines overtime as:

"(14) Overtime [is] that time during which an employee is on duty, working for the City of Whitehall, in excess of eight (8) hours in any calendar day or 40 hours in any calendar week, except for those employees working the platoon system in the Division of Fire, in which event it shall include active duty time involved in excess of 56 work hours in any one week, the average being based on three consecutive calendar weeks. Overtime applies only to that time authorized to be worked by an appointing authority in accordance with the provisions of this Ordinance."

The defendant's first two assignments of error are interrelated and will be considered together. The defendant claims that the trial court incorrectly concluded that the Whitehall police officers were required to work eight and one-quarter hours per day by failing to give the city ordinance the interpretation given by those charged with its execution and application. The defendant stated that the evidence at trial revealed that the Whitehall City Council had extensive discussions and input concerning the hours and wages of police officers; that city council took no action to change the salary ordinances to eliminate roll call or grant overtime compensation for the eight and one-quarter hour shift; that the executive and administrative officers responsible for interpreting and implementing these salary ordinances have never interpreted regular work shifts of police officers to include fifteen minutes of overtime, and that roll call time was set off by mealtime.

We find the ordinances in this case are clear. The police officers are entitled to overtime compensation for work in excess of eight hours in any calendar day or forty hours in any calendar week. While it is true that an executive body's interpretation of a statute is persuasive, it is by no means conclusive or binding on the court.

In Jewell Ridge Coal Corp. v. Local No. 6167, U.M.W. (1945), 325 U.S. 161, 65 S.Ct. 1063, 89 L.Ed. 1534 the Supreme Court had to determine what constituted "working time" which made up the work week within the meaning of Fair Labor Standards Act of 1938. The Supreme Court set forth a three-step test determining the essential elements of "w...