State of Nevada Employees' Ass'n, Inc. v. Bryan
| Decision Date | 09 October 1990 |
| Docket Number | No. 89-15990,89-15990 |
| Citation | 916 F.2d 1384 |
| Court | U.S. Court of Appeals — Ninth Circuit |
| Parties | 30 Wage & Hour Cas. (BN 1, 116 Lab.Cas. P 35,398 STATE OF NEVADA EMPLOYEES' ASSOCIATION, INC., Patricia Jerman, Robert Pierce, Walter Rose, Joseph Skomski, Plaintiffs-Appellees, v. Richard BRYAN, Governor of the State of Nevada, Nevada Department of Prisons, and George Sumner, Director of the Nevada Department of Prisons, Defendants-Appellants. |
Brian McKay, Nevada Atty. Gen., Cheryl Lau, Deputy Atty. Gen., Dept. of Motor Vehicles and Public Safety, Carson City, Nev., for defendants-appellants.
Norah Ann McCoy, State of Nev. Employees' Ass'n, Carson City, Nev., for plaintiffs-appellees.
Appeal from the United States District Court for the District of Nevada.
Before ALARCON and POOLE, Circuit Judges, and SPENCER WILLIAMS, * District Judge.
Appellants, the State of Nevada entities and officials, appeal the district court's findings of fact and conclusions of law after a bench trial. The district court found that State of Nevada's overtime compensation policy violated section 7(o ) of the Fair Labor Standards Act (FLSA), 29 U.S.C. Sec. 207(o ), (West Supp.1989) (the "Act"). The district court found that the State's overtime compensation policy, which authorized the use of compensatory time off as a method of paying for overtime labor, violated section 7(o ) of the FLSA. Section 7(o ) of the FLSA permits the use of compensatory time off only where there is a memorandum or understanding between the governmental employer and the "representative" of the employees to allow the use of compensatory time off. We affirm in part and reverse in part.
Plaintiff State of Nevada Employees' Association ("SNEA") 1 is a non-stock, non-profit corporation incorporated in the State of Nevada. The membership of SNEA is comprised exclusively of employees of the State. All members of SNEA have authorized SNEA to represent them in labor matters.
Individually named plaintiffs Patricia Jerman, Robert Pierce, Walter Rose, and Joseph Skomski are employees of the State Department of Prisons. The Department of Prisons hired Robert Pierce on February 19, 1983; Walter Rose on April 8, 1974; Joseph Skomski on April 8, 1974; and Patricia Jerman on August 13, 1979. (Appellees are collectively referred to as "SNEA.")
Appellants and defendants below, the State of Nevada entities and officials (collectively referred to as "the State") provides a system in which employees can choose either extra time off ("compensatory leave") or cash payments as compensation for overtime work, provided that the State has sufficient funds to provide cash payments for overtime. If the State lacks the funds to pay for overtime work, the employees receive compensatory leave or can carry over their requests for cash payments to the next fiscal year. This policy is codified in Nevada Administrative Code Sec. 284.250. Currently there is no agreement between SNEA and the State concerning payment for overtime work. The State's current policy for payment of overtime work, as codified in Nevada Administrative Code Sec. 284.250, has been in effect since August 11, 1973.
The Nevada Senate and Assembly have recognized SNEA in the Assembly Concurrent Resolution No. 29, adopted in 1969, which states:
ASSEMBLY CONCURRENT RESOLUTION--Providing for state recognition of the Nevada State Employees' Association
WHEREAS, A substantial number of state employees are members of the Nevada State Employees' Association; and WHEREAS, The Nevada State Employees' Association should be recognized as representatives of its members for purposes of preserving and advancing their interests as state employees; now, therefore, be it
Resolved by the Assembly of the State of Nevada, the Senate concurring, That the legislature of the State of Nevada expresses its sense that the personnel division of the department of administration should recognize the Nevada State Employees' Association as representative of its members for discussion of conditions of employment, hours and wages, while at the same time preserving the right of state employees who are not members of such association to speak for themselves.
The Nevada legislature has also appointed members of SNEA to the merit award board (Nevada Revised Statutes Sec. 285.030) and to the committee on group insurance (Nevada Revised Statutes Sec. 287.041).
During Richard Bryan's term as governor of the State in 1986, he formed a negotiating team to meet with SNEA to establish guidelines for state employees in the executive branch. In 1986, SNEA sent a proposal to Governor Bryan to conform the practices of the State to the 1985 amendment of the Fair Labor Standard Act, 29 U.S.C. Sec. 201 et seq. ("FLSA"), specifically in regard to the payment for overtime work, the same issue as in the case at bar. The negotiating team met with members of SNEA and but did not reach an agreement regarding payment for overtime work.
In 1987, the Department of Prisons and SNEA reached a temporary agreement in which the State employees who worked for the Department of Prisons could receive leave instead of cash for overtime work.
The Local Government Employee-Management Relations Act authorizes local government employees to participate in collective bargaining but does not authorize State employees to participate in collective bargaining. Nevada Revised Statutes Secs. 288.010-288.280. State employees are specifically barred from participating in collective bargaining. Nevada Attorney General's Opinion 494 (March 4, 1968).
The State Personnel System is the entity charged with the responsibility to establish classifications for jobs and salaries. Nevada Revised Statutes Sec. 284.010. The State Personnel System proposes a pay plan, reviewed by the Governor of Nevada and voted upon by the Nevada Legislature.
SNEA and the individually named plaintiffs brought suit against the State, alleging that the State had violated section 7(o ) of the FLSA. Section 7(o ) of the FLSA permits a state employer to use compensatory time off for payment of overtime work only where there is a collective bargaining agreement or memorandum of understanding between the employees' "representative" and the State. The suit was brought pursuant to 29 U.S.C. Sec. 216(b) and tried before the District Court, which granted judgment for plaintiffs. The District Court refused to award liquidated damages but awarded backpay, ordered the State to comply with the FLSA, and enjoined the State from paying for overtime work with compensatory time, absent an agreement with SNEA. The District Court granted attorneys' fees to plaintiffs in the amount of $8,800.00 on June 15, 1989. The District Court found that SNEA was a "representative" for purposes of section 7(o ) and that the State was thus allowed to pay SNEA member-employees by compensatory time off only if there was an understanding, agreement, or memorandum between SNEA and the State. The District Court found that because there was no such agreement between the State and SNEA, the State was in violation of section 7(o ).
The State appeals the decision of the District Court on two grounds: (1) that the finding that SNEA was a "representative" for purposes of section 7(o ) was incorrect; and (2) that SNEA was not a proper party in this litigation. We review the District Court's interpretation of both state and federal laws de novo. In re McLinn, 739 F.2d 1395, 1397 (9th Cir.1984). All parties agree that there are no questions of fact in dispute.
In Nevada Highway Patrol Assoc. v. State of Nevada, 899 F.2d 1549 (9th Cir.1990), we considered whether the State of Nevada was in violation of section 7(o ) of the FLSA by offering a choice of compensatory leave or overtime pay that could be deferred in the absence of cash to employees who were members of the Nevada Highway Patrol Association ("NHPA"). The plaintiffs, members of the NHPA, charged that because the NHPA was a "representative," the State of Nevada could not offer compensatory leave for overtime work unless there was an agreement or memorandum of understanding between the State of Nevada and the NHPA. In Nevada Highway Patrol Assoc., we held that although the NHPA was not a "representative" for purposes of the FLSA, SNEA was, and we remanded to the district court to determine how many of the plaintiffs were members of SNEA. Id. at 1555. We stated: Id.
Defendant the State argues in the case at bar that the language in Nevada Highway Patrol Assoc. is merely dicta, not binding on this case. However, a close examination of the arguments in this case affirms the ruling that SNEA is a "representative" for purposes of the FLSA.
The general terms of the FLSA provide that all employers must pay employees one and one-half the regular rate for any hours worked above a forty-hour workweek. 2 However, as an exception to this general provision, a state may provide leave time as compensation for overtime work when such compensation is determined by a collective bargaining agreement, memorandum of understanding, or an agreement between the employees' "representative" and the employer. 3
Section 7(o ) of the FLSA states:
Employees of a public agency which is a State, a political subdivision of a state, or an interstate governmental agency may receive, in accordance with this subsection and in lieu of overtime compensation, compensatory time off at a rate not less than one and one-half hours for each hour of employment for which overtime compensation is required by this section.
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