Erickson v. City of Waltham

• Decision Date: 19 July 1974
• Citation: 2 Mass.App.Ct. 436,314 N.E.2d 139
• Parties: Ralph C. ERICKSON et al. 1 v. CITY OF WALTHAM.
• Court: Appeals Court of Massachusetts

Page 139

314 N.E.2d 139

2 Mass.App.Ct. 436

Ralph C. ERICKSON et al. ¹ v. CITY OF WALTHAM.

Appeals Court of Massachusetts, Middlesex.

Argued Nov. 15, 1973.

Decided July 19, 1974.

William J. Bannan, Jr., City Sol., for the City of Waltham.

Charlotte Anne Perretta, Boston, for plaintiffs.

Before HALE, C.J., and GRANT and ARMSTRONG, JJ.

ARMSTRONG, Justice.

This bill in equity was brought by the plaintiffs, members of the police department of the city of Waltham (city), to secure declaratory relief, certain forms of interlocutory injunctive relief not here relevant, and compensation in excess of that previously paid them for overtime and for paid holidays during the period April 1, 1964, to April 1, 1970. The case was referred to a master, who found the plaintiffs entitled to additional compensation in several categories of claims. After confirmation of that report, a final decree was entered which made declarations of general principles governing the rights of the plaintiffs to the additional compensation sought, and then, presumably applying those principles to the situations of the individual plaintiffs, declared the city indebted to them in varying dollar amounts, which were ordered paid. ² The case comes to us on the city's appeal from the final decree.

As no objections were made by either party to the master's report, and no appeal was claimed from the interlocutory decree confirming the report, the latter conclusively established the master's findings between the parties. Limoli v. Accettullo, 358 Mass. 381, 382, 265 N.E.2d 92 (1970). Those findings cannot be set aside unless mutually inconsistent, contradictory, or plainly wrong. Gil-Bern Constr. Corp. v. Medford, 357 Mass. 620, 623, 260 N.E.2d 160 (1970). However, the master's 'conclusions of fact, based on inferences from the subsidiary findings, are open to review not only by the trial court but also by this court.' LiDonni, Inc. v. Hart, 355 Mass. 580, 583, 246 N.E.2d 446 (1969). O'Brien v. Dwight, --- Mass. ---, ---, ^a 294 N.E.2d 363 (1973). This is true notwithstanding the fact that no objections were appended to the master's report. United States Fidelity & Guar. Co. v. English Constr. Co. 303 Mass. 105, 111, 20 N.E.2d 939 (1939). The case of Smigliani v. Smigliani, 358 Mass. 84, 87, 260 N.E.2d 917 (1970), cited by the plaintiffs, holds nothing to the contrary.

Overtime Compensation Claims

Three of the claims advanced by the plaintiffs related to overtime compensation. These claims arose out of a work schedule which established three shifts: a 'day shift', commencing at 7:45 A.M. and terminating at 4:30 P.M., a total of eight hours and forty-five minutes; a 'first half night shift', commencing at 4:30 P.M. and terminating at 12:30 A.M., a total of eight hours even; and a 'second half night shift', commencing at 12:30 A.M. and terminating at 7:50 A.M., a total of seven hours and twenty minutes. Officers assigned to the day shift are claiming a right to overtime compensation for the time in excess of eight hours required of their shift alone. Officers assigned to the night shifts, who alternated daily between the first half and second half night shifts, served after January 22, 1967, on a rotating schedule which was of eight weeks duration and which required officers to work five days in six of those weeks, four days in one of those weeks and six days in the remaining week. They are claiming to be entitled to overtime pay for the sixth day which occurred once in each eight week cycle. ³

General Laws, c. 147, § 17B, inserted by St.1956, c. 349, and accepted by the city in 1963, was in effect during the entire period in dispute. In relevant part it provides that

'the services of all regular or permanent police officers . . . shall be restricted to five days and to forty hours in any one week; provided, that service in excess of the aforesaid days and hours may be authorized . . . and the officer performing such additional service shall be compensated at the hourly rate of his regular compensation for his average weekly hours of regular duty or such higher rate as may be determined by the person or persons authorized to establish pay scales . . ..'

Day Shift Overtime

Although the city acknowledges that the day shift extends to forty-three hours and forty-five minutes each week, it argues that of each eight hours and forty-five minute shift one half hour represented off-duty time for lunch and fifteen minutes represented off-duty time for "coffee break' and personal needs.'

The master found that 'General Regulations Sub-section 1A' of the police department regulations states in part: 'All officers may take one-half hour lunch period, to be taken at the discretion of the officer so as not to interfere with his duties.' Absent some indication to the contrary we assume this regulation applied during the entire six year period at issue.

Prior to 1967, officers on foot patrol, or 'route men', had no specific lunch period. Rather, a route man was required to notify headquarters when he wished to take his half hour for lunch, and to receive permission from headquarters before doing so. He was also required to inform headquarters where he would be during that half hour, and could not eat his lunch at a place off his route without permission. After January 22, 1967, two specific half hour lunch periods were established, but a route man was still required to notify headquarters, receive permission, and, unless otherwise permitted, remain on his route during his half hour period. In October, 1967, the department introduced walkie-talkie communication between route men and headquarters and introduced a new lunch system, under which there was posted at headquarters a regular lunch schedule which apparently assigned a specific half hour lunch period for each route man. The latter could thereafter take his lunch without notifying headquarters, and was not required to remain on his route during his lunch period.

The divergence in practice before and after October, 1967, is not reflected in the master's subsidiary findings relating to lunch periods for officers assigned to cruisers. So far as we are told, they were at all times assigned specific, staggered lunch periods during which they were permitted to eat at home or elsewhere. Although cruiser men were required to notify headquarters when taking lunch, during that time the cruiser was left unattended with the radio shut off.

Officers assigned to station house duty worked in normal complements of four, with three required to be on duty at all times. These officers worked out the time and order of lunch among themselves. Such officers were free, subject to release (we assume as to time only) by the officer in charge, to leave the station, or instead could have their lunches brought into the station.

The master also found that all officers were subject to be called upon to perform emergency duties during their lunch periods, and that '(p)olice officers (whether route men or all officers is not clear from the context) while on lunch period have had lunch interrupted because of duties or emergencies requiring the officer to perform in his official capacity.'

No contention appears to be made that coffee breaks or breaks for personal needs rest on a regulation or on an established custom. Rather, the city's contention appears to be that officers generally spend at least fifteen minutes of each shift on such pursuits. The master made no finding in that respect.

The master drew the following conclusions: (1) 'that all day shift police officers are subject to call and actually under the control and direction of the . . . Department, and thereby on duty, during their one-half hour lunch period, coffee breaks and when attending to calls of nature'; and (2) 'that all day shift police officers . . . working between the hours of 7:45 A.M. and 4:30 P.M. . . . are continually on duty and employed eight and three-quarters hours during those hours.'

The master's conclusion is correct with respect to breaks for coffee and personal needs. There are no subsidiary findings to sustain the city's contention that during such breaks officers are not on duty; and as a practical matter it would be very difficult administratively to treat a multiplicity of irregular, short breaks as off-duty time. See Mitchell v. Greinetz, 235 F.2d 621, 625 (10th Cir. 1956).

We do not agree, however, with the master's conclusion that the half hour lunch period must be included as time spent on duty. Rather, we construe the departmental regulation, viewed in the light of the practice under it, as having given each man a half hour off duty for lunch. The regulation is not altogether clear in this respect, and the plaintiffs argue that the language 'so as not to interfere with his duties' implies that the men were on duty throughout the lunch period. We feel there is a distinction, however, between being permitted to eat lunch in such manner that it does not interfere with one's duties, as in Albright v. United States, 161 Ct.Cl. 356, 361--362 (1963), and being permitted to take a half hour lunch period in such manner that it does not interfere with one's duties. The implication of the latter, read in the light of the earlier practice of not having fixed lunch periods, is merely that the selection of one's half hour lunch period should be timed so as not to interfere with duties known beforehand.

This case falls within the rule that '(g)enerally speaking, time available for, or spent, sleeping and eating is non-compensable, even where the employee is required to be on the employer's premises. This rule is now well established.' Rapp v. United States, 340 F.2d 635, 642, 167 Ct.Cl. 852 (1964). ⁴

The master's findings that officers were subject to call back to duty during lunch, and in fact were sometimes (how frequently does not appear) so called back, is not inconsistent with the city's contention that when not so called the...