Hill v. U.S.

• Decision Date: 22 January 1985
• Docket Number: No. 83-3655,83-3655
• Citation: 751 F.2d 810
• Parties: 26 Wage & Hour Cas. (BN 1623, 27 Wage & Hour Cas. (BN 103, 102 Lab.Cas. P 34,612 Kenneth J. HILL, et al., Plaintiffs-Appellants, v. UNITED STATES of America, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 810

751 F.2d 810

26 Wage & Hour Cas. (BN 1623, 27 Wage & Hour

Cas. (BN 103,

102 Lab.Cas. P 34,612

Kenneth J. HILL, et al., Plaintiffs-Appellants, v. UNITED STATES of America, et al., Defendants-Appellees.

No. 83-3655.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 2, 1984.

Decided Nov. 21, 1984.

As Amended on Denial of Rehearing and Rehearing En Banc Jan. 22, 1985.

Victor J. Gulyassy, Gabrielle Gulyassy Kinkela, Robert V. Kinkela (argued), Gulyassy, Feudo, Kinkela & Kinkela, Parma Heights, Ohio, Shale S. Sonkin, Sonkin & Melena, Co., Cleveland, Ohio, for plaintiffs-appellants.

Frances L. Nunn, Civil Div., Dept. of Justice, Commercial Litigation Branch, Robert A. Reutershan, George M. Beasley, III (LEAD) (argued), Washington, D.C., for defendants-appellees.

James D. Burroughs, United States Postal Service, Washington, D.C., for U.S. Postal Service.

Before ENGEL and KENNEDY, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

PHILLIPS, Senior Circuit Judge.

This case involves the claim of one city letter carrier, Ernest Cummings, who alleges entitlement to wages and compensation withheld by the Postal Service allegedly in violation of the Fair Labor Standards Act (FLSA) 29 U.S.C. Secs. 201-219. This action was brought originally by eight letter carriers, and approximately 12,000 postal employees filed consents to become parties plaintiff pursuant to 29 U.S.C. Sec. 216(b). On cross-motions for summary judgment in the district court, the court agreed to consider the claims of appellant Cummings as typical of those of the other plaintiffs. The court entered summary judgment against Cummings and he appeals.

I

Cummings argues that the Postal Service has violated the Act by failing to compensate letter carriers for the one-half hour designated as the lunch period. This period is automatically deducted from the eight and one-half hour work day clocked in by letter carriers. Cummings argues that the Postal Service does not comply with the requirement in 29 U.S.C. Sec. 207 that employers must pay employees who work in excess of forty hours per week at a rate one and one-half times the normal hourly rate. ¹

Cummings is employed as a city letter carrier at the North Olmsted Post Office near Cleveland, Ohio. He clocks in each morning wearing a full uniform. He begins his day with "office time," when he prepares mail for delivery and signs out accountable items including a Postal Service key, and accountable mail such as COD, postage due, registered, certified, and insured mail. He then begins delivering mail, accepting mail for delivery, and collecting receipts and money for certain mail.

Cummings receives a half hour lunch break between 12:45 and 1:15 p.m. He has a choice of three lunch places chosen by him and approved by his supervisors. He proceeds from his delivery route to an authorized lunch place by an authorized line of travel. The Postal Service automatically deducts this half hour from Cummings' pay. Cummings is paid for eight hours of work.

City letter carriers generally cannot carry their entire day's mail in their shoulder satchels. Therefore, their routes are broken down into segments known as relays. Relay boxes are containers placed along delivery routes in which mail is stored until the carrier reaches the relay box. The carrier will have delivered the mail in his or her satchel before reaching the relay box and will be ready to fill it again from the contents of the relay box, to deliver the next segment of his or her route. The lunch period begins when the letter carrier secures his or her shoulder satchel in a relay box and begins walking to lunch, or, in Cummings' case, when he secures undelivered mail in his vehicle and drives his vehicle from his route to an authorized lunch place by an authorized line of travel.

During lunch, letter carriers remain responsible and accountable for the security of accountable items and mail as well as for the undelivered mail. Accountable mail includes customs duty mail, postage due mail, and special services mail. Cummings carries with him to lunch, and is responsible for, the following items:

(1) a list of the accountable mail that has not been delivered prior to lunch;

(2) receipts for the accountable mail which has been delivered prior to lunch;

(3) monies appellant may have collected from deliveries of COD mail prior to lunch;

(4) a Postal Service key secured to his uniform by a chain thirty inches long; and

(5) keys to the vehicle he drives to and from lunch.

Cummings argues that he is in uniform during his lunch, is highly visible, and "serves the public as requested, including providing information and accepting mail." Postal regulations require letter carriers to be "courteous and obliging in the performance of duties," to furnish customers with postal information and postal forms, and to accept letters and prepaid first-class mail from customers. Despite the Postal Service's emphasis on courtesy, however, there is no postal regulation requiring city letter carriers to accept mail from the public during their meal periods or otherwise conduct postal business in response to inquiries from members of the public during their meal periods.

Grady S. Dorsey, Superintendent of Postal Operations at the North Olmstead Post Office, and supervisor of appellant Cummings, had numerous discussions with city letter carriers, including Cummings, regarding their activities. He stated, in a declaration before the district court, that he could not recall any discussions regarding customers interrupting the carriers' lunches. Similarly, Gary A. Weiss, Manager of Delivery and Collections and a route inspector at the same post office who had conducted over five hundred route inspections, declared that he did not recall ever seeing a postal patron interrupt a carrier while at lunch requesting him to accept or deliver mail, or to provide any other postal service or information. Weiss stated that he had accepted mail at lunchtime, once per week or so, while he was a letter carrier, but was not required to do so. Weiss stated that although he had had thousands of discussions with letter carriers, he did not recall that any carriers mentioned being interrupted by customers at lunchtime. Appellant submitted the deposition of letter carrier Roach, who testified to frequent interruptions at lunchtime from customers seeking information or service.

Appellant emphasizes that he is not relieved of accountability for all mail, money and equipment entrusted to his care until the end of the workday. Letter carriers are subject to discipline for failure to exercise reasonable care for the items in their care and for the mail secured in postal vehicles and relay boxes. Appellant is not required to eat in the vehicle or to keep the vehicle in sight during the lunch period.

II

The district court held that the restrictions on appellant's time during his lunch period did not interfere with the free disposition of his lunch period. It held that he had no substantial duties at this time that would inhibit his ability adequately and comfortably to pursue interests of a private nature. Therefore, the court held that the Postal Service was not obligated to compensate Cummings for his meal period. We affirm.

The Fair Labor Standards Act of 1938, as amended, 29 U.S.C. Secs. 201-219 (FLSA), was made applicable to the Postal Service by amendment effective May 1, 1974. As stated above, Sec. 207(a)(1) forbids employers from employing employees for more than forty hours per week without compensating employees at a higher rate. The Act defines "employ" as "to suffer or permit to work." 29 U.S.C. Sec. 203(g). The Act does not define "work" and leaves the definition to the courts. Work includes "physical or mental exertion" for the employer's benefit, see Tennessee Coal, Iron & Railroad Co. v. Muscoda Local 123, 321 U.S. 590, 598, 64 S.Ct. 698, 703, 88 L.Ed. 949 (1944), as well as stand-by or waiting time, Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118 (1944); Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944).

In Armour & Co., the Supreme Court held that private fire fighters employed by a soap factory were entitled to compensation for time spent on call. The Court cautioned against reading the words of previous opinions out of the context of the facts of the case under discussion. 323 U.S. at 132-33, 65 S.Ct. at 168. It therefore held that compensability under the FLSA was not limited by the language in Tennessee Coal, Iron & Railroad Co. referring to "physical or mental exertion." The Court then held, "Whether time is spent predominantly for the employer's benefit or for the employee's is a question dependent upon all the circumstances of the case." 323 U.S. at 133, 65 S.Ct. at 168.

In Skidmore, the Court reiterated its holding that inactive duty may be compensable and emphasized that each case "must stand on its own facts," 323 U.S. at 140, 65 S.Ct. at 164. The Court also held that administrative interpretations of the compensability of particular worktime, while not conclusive or binding on the courts, are entitled to respect. Id. at 139-40, 65 S.Ct. at 164. "The weight of such a judgment in a particular case," the Court held, "will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its conspiracy with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Id. at 140, 65 S.Ct. at 164.

The Sixth Circuit addressed the compensability of meal periods under the FLSA in F.W. Stock & Sons v. Thompson, 194 F.2d 493 (6th Cir.1952). The court held that the meal period in that case was compensable because mill workers were required by the nature of their work and their employer to pay "constant attention" to their machinery and because "[t]heir lunch periods were often interrupted by emergencies requiring immediate attention."...