JACKSONVILLE PROFESSIONAL FIRE FIGHTERS ASSOCIATION LOCAL 2961, IAFF v. City of Jacksonville

• Decision Date: 28 May 1987
• Docket Number: No. 86-58-CIV-4.,86-58-CIV-4.
• Citation: 685 F. Supp. 513
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: JACKSONVILLE PROFESSIONAL FIRE FIGHTERS ASSOCIATION LOCAL 2961, IAFF, et al., Plaintiffs, v. The CITY OF JACKSONVILLE, Defendant.

685 F. Supp. 513

JACKSONVILLE PROFESSIONAL FIRE FIGHTERS ASSOCIATION LOCAL 2961, IAFF, et al., Plaintiffs, v. The CITY OF JACKSONVILLE, Defendant.

No. 86-58-CIV-4.

United States District Court, E.D. North Carolina, New Bern Division.

May 28, 1987.

COPYRIGHT MATERIAL OMITTED

M. Travis Payne, Steven R. Edelstein, Edelstein & Payne, Raleigh, N.C., for plaintiffs.

Marshall F. Dotson, Jr., Warlick, Milsted, Dotson & Carter, Jacksonville, N.C., for defendant.

MEMORANDUM OF DECISION

DUPREE, District Judge.

Plaintiffs brought this action on June 12, 1986 alleging that defendant violated the Fair Labor Standards Act of 1938 (hereinafter referred to as the FLSA), 29 U.S.C. § 201, et seq., by deducting sleep time from hours worked without a prior agreement with plaintiffs as required by 29 C.F.R. § 553.15 (1986) and by adopting a policy of compensatory time off ("comp time") in lieu of overtime pay without an agreement with plaintiffs' representative, Jacksonville Professional Fire Fighters Association, Local 2961 (hereinafter referred to as JPFFA) as provided in 29 U.S.C. § 207(o). As relief plaintiffs seek a declaratory judgment, an injunction, compensatory damages for unpaid overtime, and liquidated damages pursuant to 29 U.S.C. § 216(b). The action is presently before the court on the parties' cross-motions for summary judgment. Both parties have responded by memoranda and supporting documentation, and they agree that the case may be decided by the court on the basis of the undisputed facts in the record.

FACTS

Based on the record the following facts appear not to be in dispute. At the time of the action complained of by plaintiffs, the Jacksonville City Fire Department employed a total of fifty-one employees, forty-six of whom were classified as non-exempt under the FLSA.¹ A breakdown of non-exempt employees in the fire department was as follows: eight company officers, eight drivers/operators, nine assistant drivers, and twenty-one fire fighters.

Since 1974 the Jacksonville Fire Department has operated under a fourteen-day work schedule consisting of twenty-four hours on duty followed by forty-eight hours off duty. Under this two-week work schedule, the firefighters worked an average of 112 hours. In April 1985, defendant claims it came under the Fair Labor Standards Act. As a result, the work cycle for firefighters was changed by defendant from fourteen days to a twenty-eight-day work period. Also, on September 6, 1985 firefighters were notified by defendant that the previously required twenty-four-hour shift would be increased by fifteen minutes, that eight hours of sleep time² would be deducted from each twenty-four-hour and fifteen-minute regular shift for purposes of computing overtime, and that they could work up to 212 hours before overtime pay would be due.

Up until this time sleep time had never been deducted from hours worked by firefighters. Because these deductions were applicable only for purposes of overtime computations plaintiffs continued to be paid for hours worked including sleep time.³ However, plaintiffs did not receive any increase in pay for the fifteen minutes added to their twenty-four-hour shift.

The above-mentioned changes made by defendant were taken in order to take advantage of 29 U.S.C. § 207(k), the partial overtime exemption provision of the FLSA, which permits sleep time deductions when computing compensable hours for overtime purposes. This action was taken in accordance with instructions obtained by defendant at an FLSA seminar sponsored by the League of Cities on August 23, 1985. The changes were made without any prior vote or agreement with the firefighters.

On September 11, 1986, Fire Chief Barger wrote to Alfred Perry, Assistant Regional Administrator for the Wage and Hour Division in Atlanta for written confirmation that such action without an employee vote was proper. Written confirmation was received October 7, 1985. However, during the time these changes came into effect, on or before September 10, 1985, thirty-three of the forty-six non-exempt firefighters signed and sent to the city manager a petition expressly objecting to the sleep time deduction and fifteen-minute addition to their shift. In spite of the petition defendant did not enter into any express agreement with the firefighters regarding the deductions.

On March 17, 1986 defendant received a letter signed by David Johnson, President of Local No. 2961 of the International Association of Fire Fighters and another petition signed by thirty-two of the fifty-one firefighters notifying the city that they had selected Local No. 2961 as their representative for the purpose of entering into an agreement regarding the use of comp time in lieu of overtime pay as provided in 29 U.S.C. § 207(o), the subsection added to the FLSA by way of the 1985 amendments, to be effective as of April 15, 1986. All the firefighters who executed the petition were employed by the city prior to April 15, 1986.

In spite of the letter and petition the defendant did not contact the firefighters or their representative regarding the use of compensatory time. However on April 11, 1986 a draft copy of a revised comp time policy was distributed to department heads and posted on all employee bulletin boards. Not only did this policy provide for the utilization of compensatory time off for overtime worked instead of any monetary payment, it also granted authority to the city manager to determine, at his discretion, whether firefighters were actually paid for overtime or given comp time off. Although the employees were instructed to comment on the proposed policy no response was received from the fire fighters individually.

On April 23, 1986 defendant adopted this proposed policy. Shortly thereafter the city manager received a letter from plaintiffs' counsel objecting to the use of comp time and reaffirming plaintiffs' objection to the continued deduction of sleep time from hours worked. Plaintiffs have never entered into any agreement providing for the use of comp time in lieu of pay for the overtime they have worked.

At all times relevant to this action plaintiffs have received pay based on defendant's records showing an "average" of 224 hours worked in the twenty-eight-day work cycle. At least since March of 1985 and continuing up through the present, the pay stubs received by firefighters reflect payment for 112 hours every two weeks. However, some of defendant's records indicate that the actual number of hours worked by some firefighters has varied between 218 and 234 hours. When sleep time is deducted, it is taken against this 224-hour "average" rather than against the actual number of hours worked. Plaintiffs are presently receiving neither overtime pay nor comp time for any hours they have worked during regularly scheduled shifts.

DISCUSSION

Two substantive issues are presented by the parties' motions for summary judgment both of which pertain to overtime compensation. The first issue raised is whether defendant violated the FLSA, specifically 29 C.F.R. § 553.15(b), when it implemented a sleep time deduction policy for computing overtime without first obtaining plaintiffs' consent by way of agreement. The second issue is whether defendant's adoption of a compensatory time off policy in lieu of monetary pay for overtime without first obtaining an agreement with plaintiffs' representative, JPFFA, violated 29 U.S.C. § 207(o). However, before addressing these issues, a review of the legislative history surrounding the FLSA is warranted, particularly as it applies to public employees.

1. Legislative Background of the FLSA

Using its powers under the Commerce Clause, Article I, Section 8, Clause 3, Congress enacted in 1938 the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., to establish labor standards in order to maintain the "minimum standard of living necessary for health, efficiency, and general well-being of workers." 29 U.S.C. § 202. Two such standards require employers to pay employees a certain minimum hourly wage, 29 U.S.C. § 206, and a higher rate at one and one-half times the regular work pay for hours worked in excess of forty hours per week, 29 U.S.C. § 207.

Initially, the FLSA was not made applicable to "the United States or any state or political subdivision of a state ..." acting as employers and therefore public employees were not protected. 29 U.S.C. § 203(d) (1940). On a piecemeal basis however, coverage was extended to employees of certain publicly-operated schools and hospitals pursuant to the FLSA's 1966 amendments, to employees of public preschools under its 1972 amendments and finally to all remaining state and local governments by the 1974 amendments, 29 U.S.C. § 203(d), effective January 1, 1975.

With the passage of the 1974 amendments public agencies became subject to the overtime and minimum wage provisions of the FLSA. However, with respect to overtime, a new provision was created by the amendments, 29 U.S.C. § 207(k), applicable only to public employers of police and fire protection personnel. In accordance with this provision, where five or more firefighters were employed, the public agency could elect to take advantage of subsection (k) for a partial overtime exemption. In conjunction with this statutory provision and for purposes of its interpretation, regulations were promulgated under 29 C.F.R. § 553.1, et seq., and made effective January 1, 1975. One such regulation, 29 C.F.R. § 553.15, deals with the sleep time deduction.

The 1974 amendments to the FLSA came under attack in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), overruled, Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). There the Supreme Court found the amendments unconstitutional as they pertain to certain public agency employers because Congress was without power to "force directly upon the States its choices as to how...