Rousseau v. Teledyne Movible Offshore, Inc., 86-4050

• Decision Date: 16 December 1986
• Docket Number: No. 86-4050,86-4050
• Citation: 805 F.2d 1245
• Parties: 27 Wage & Hour Cas. (BN 1574, 105 Lab.Cas. P 34,873 C.M. ROUSSEAU, Jr., et al., Plaintiffs-Appellants, v. TELEDYNE MOVIBLE OFFSHORE, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1245

805 F.2d 1245

27 Wage & Hour Cas. (BN 1574, 105 Lab.Cas. P 34,873

C.M. ROUSSEAU, Jr., et al., Plaintiffs-Appellants, v. TELEDYNE MOVIBLE OFFSHORE, INC., Defendant-Appellee.

No. 86-4050.

United States Court of Appeals Fifth Circuit.

Dec. 16, 1986.

Wendell G. Lindsay, Jr., Randall G. Wells, Baton Rouge, La., for plaintiffs-appellants.

Greg Guidry, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, La., for defendant-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before THORNBERRY, DAVIS, and HILL, Circuit Judges.

THORNBERRY, Circuit Judge:

This is an appeal from an order dismissing plaintiffs' claim for wages under the Fair Labor Standards Act ("hours worked claim") and from a judgment notwithstanding the verdict on plaintiffs' claims of retaliatory discharge ("the retaliation claim"). We affirm the district court's dismissal of the hours worked claim. However, because we believe that reasonable minds could differ on the merits of the retaliation claim, we reverse the district court's judgment notwithstanding the verdict.

A complete review of the factual background in this case is contained in the district court's well-reasoned opinion. Rousseau v. Teledyne Movible Offshore, Inc., 619 F.Supp. 1513 (D.C.La.1985). We will not belabor the complete factual details here, but will note salient facts as they become important.

Defendant-appellee Teledyne Movible Offshore, Inc. ("Teledyne") is a large company engaged in what presently remains of the domestic offshore oil industry. The company owns three derrick barges. All sixty-three plaintiff-appellants ("the employees") in this case are employed by Teledyne on the derrick barges.

The Hours Worked Claim

The employees worked for Teledyne on a "hitch" basis, spending seven full days working and living on the barges and then seven full days not working or living on the barges. The basis of the employees' hours worked claim is Teledyne's "no leave" policy. This policy required the employees to remain on the barges during their hitches. Thus, even when the employees were not engaged in actual physical labor, Teledyne required them to remain on board the barges. The employees received compensation only for the time spent in active labor.

During the great oil boom of the 1970s, the derrick barges spent most of their time offshore working on various jobs. As the price of oil dropped, fewer offshore jobs became available and the barges spent increasingly more time docked. In addition, Teledyne reduced the number of working hours. Nonetheless, Teledyne's no leave policy did not change--even when the barges were docked, the employees were required to remain on board the barges during their off-duty time. This "non-labor" time remained uncompensated.

The employees brought suit under the Fair Labor Standards Act ("FLSA"), claiming that Teledyne owed them compensation for the time spent on the barges not allocable to eating or sleeping. 29 U.S.C. Secs. 201-219. ¹

The FLSA provides in pertinent part that no employer "shall employ any of his employees ... for a work week longer than forty hours unless such employee receives compensation for his employment in excess of [forty] hours at a rate not less than time and one-half the regular rate at which he is employed." 29 U.S.C. Sec. 207(a)(1). The employees argue that they were "employed" by Teledyne during the time they were required to remain on the barges, even though they were not engaged in active labor.

The Supreme Court has held that time spent by employees not actively engaged in physical labor can be compensable time under the FLSA. Armour and Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118 (1944). However, the Supreme Court has also noted that issues of compensability are highly fact specific. An inquiry into compensability

involves scrutiny and construction of the agreements between the particular parties, appraisal of their practical construction of the working agreement by conduct, consideration of the nature of the service and its relation to the waiting time, and all the surrounding circumstances.... The law does not impose an arrangement upon the parties. It imposes upon the courts the task of finding what the arrangement was.

Skidmore v. Swift and Co., 323 U.S. 134, 137, 65 S.Ct. 161, 163, 89 L.Ed. 124 (1944).

The district court found that Teledyne and the employees operated under an agreement that the employees would only receive compensation for hours spent in physical labor. This is a finding of fact. Id.; see also Allen v. Atlantic Richfield Co., 724 F.2d 1131 (5th Cir.1984). This finding must stand unless clearly erroneous. Fed.R.Civ.P. 52(a). Although the existence of an agreement may not be controlling in all cases, it is usually relevant to the compensability issue.

The record supports the district court's finding of an agreement between Teledyne and the employees. Representatives of Teledyne testified to informing the employees of the policy at various times. Indeed, many of the employees who testified admitted at least some awareness of the policy.

Of course, it is clear that the employees did not like the no leave rule. But their dislike does not negate the existence of an agreement. As the district court pointed out, continuance of employment can be evidence of an implied agreement to the terms of that employment. Shepler v. Crucible Fuel Co., 140 F.2d 371, 374 (3rd Cir.1949). In any event, as we cannot say that the district court's finding of an agreement is clearly erroneous, it must stand.

The employees also argue that the time they spent on the barges not actively working was time spent primarily for the benefit of the employer and thus compensable time under the FLSA. As did the district court, we reject this argument.

This conclusion is consistent with our holding in Allen v. Atlantic Richfield Co., 724 F.2d 1131 (5th Cir.1984). In that case, 22 security guards brought suit against their employer, Atlantic Richfield ("Arco"), alleging a statutory right under the FLSA to overtime pay. During a strike by production employees, Arco required the security guards to work 12 hour shifts each day. Arco required the guards to remain within the confines of the refinery during their 12 hour off duty period. Arco compensated the guards for any actual work done during this off duty time. Otherwise, this off duty time was not compensable.

In recognizing that there are instances in which time spent on the premises of the employer is not compensable time, the Allen court noted that "whether time was compensable working time depended 'upon the degree to which the employee is free to engage in personal activities during periods of idleness when he is subject to call and the number of consecutive hours that the employee is subject to call, without being required to work.' " Id. at 1137 (quoting Skidmore, 323 U.S. at 138, 65 S.Ct. at 163). The Allen court found evidence in the record to support a conclusion that the guards were free to engage in a variety of recreational activities during their off duty hours. This created a fact question sufficient to preclude summary judgment on the issue of compensable time. Allen, 724 F.2d at 1137.

In the present case, the record reflects that Teledyne offered its employees a variety of recreations and amusements during their off duty times. According to the district court,

[t]he stipulated facts and evidence show that during their off duty time on the barges, the plaintiffs were free to sleep, eat, watch television, watch VCR movies, play pingpong or cards, read, listen to music, etc. They seldom or never did any...