United Transp. Union Local 1745 v. Albuquerque, 97-2394

• Decision Date: 28 May 1999
• Docket Number: 97-2400.,No. 97-2394,97-2394
• Citation: 178 F.3d 1109
• Parties: UNITED TRANSPORTATION UNION LOCAL 1745; Robert C. Gutierrez, Chairman; John D. Hunter, President; John Barnes, Anthony Chavez, David Lovato, Dorothea Montano, Dale J. Padilla, Jacob Romero, Leroy Saavedra, Patricia Sandoval, and similarly situated Motorcoach Operators, Plaintiffs-Appellees/Cross-Appellants, v. City of ALBUQUERQUE; Martin Chavez, Mayor; and Lawrence Rael, Chief Administrative Officer, Defendants—Appellants/Cross-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

178 F.3d 1109

UNITED TRANSPORTATION UNION LOCAL 1745; Robert C. Gutierrez, Chairman; John D. Hunter, President; John Barnes, Anthony Chavez, David Lovato, Dorothea Montano, Dale J. Padilla, Jacob Romero, Leroy

Saavedra, Patricia Sandoval, and similarly situated Motorcoach Operators, Plaintiffs-Appellees/Cross-Appellants, v. City of ALBUQUERQUE; Martin Chavez, Mayor; and Lawrence Rael, Chief Administrative Officer, Defendants—Appellants/Cross-Appellees.

Nos. 97-2394, 97-2400.

United States Court of Appeals, Tenth Circuit.

May 28, 1999.

COPYRIGHT MATERIAL OMITTED

Edward W. Bergmann, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Illinois (Noah A. Finkel, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Illinois, and Charles W. Kolberg, City of Albuquerque, Albuquerque, New Mexico, with him on the briefs), for Appellants/Cross-Appellees.

Paul S. Livingston, Albuquerque, New Mexico (Daniel R. Elliott III and Kevin C. Brodar, United Transportation Union, Cleveland, Ohio, with him on the briefs), for Appellees/Cross-Appellants.

Before SEYMOUR, Chief Judge, ANDERSON, and BRISCOE, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Plaintiffs-Appellees are 155 bus drivers employed by defendant-appellant, the City of Albuquerque ("City").¹ Most of them work "split shifts," in that they work a morning shift and a late afternoon shift, separated by a three to five-hour split shift period in which they are free to do what they wish, before reporting back at a specific location to begin their second shift. The drivers brought this action against the City, claiming that the City violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219, and the Portal-to-Portal Act, 29 U.S.C. §§ 251-262, by failing to compensate them for (1) time spent on split shift periods and (2) time spent on City-operated shuttles going to and from the beginning and/or end points (called "relief points") of their driving shifts.

After both sides filed motions for summary judgment, the district court held that only the time traveling on City shuttles from a relief point after a driver's first run of the day or to a relief point to begin a second run is compensable, thereby denying in part and granting in part both sides' summary judgment motions.

We certified the City's 28 U.S.C. § 1292(b) interlocutory appeal challenging the district court's conclusion that shuttle time traveling to or from a relief point, either immediately preceding or immediately following a non-compensable split shift period, is compensable. The drivers filed a cross-appeal, challenging the district court's conclusions that (1) aside from the shuttle time at either end, the split shift periods are non-compensable, and (2) time spent traveling to and from relief points at the beginning and end of the day are non-compensable.² We affirm.

BACKGROUND

The relevant facts are undisputed. In order to serve its customers most efficiently, the City must schedule more buses in the peak commute hours of early morning and late afternoon. Additionally, it must schedule routes so that drivers do not necessarily complete their routes where they started them. Accordingly, many City bus drivers work a morning shift and an evening shift, beginning and ending those shifts at different locations. The time in between the two shifts is the split shift period. 137 of the 155 plaintiff drivers have worked split shifts during the time period relevant to this lawsuit.

All City buses are housed overnight in the City garage. Many drivers begin their morning routes at the City garage and complete those routes at a far-off relief point. Many drivers also begin their afternoon or evening shift at a distant relief point and end up at the City garage. The distances between the garage and these relief points range from six blocks to many blocks.³

For many years, City bus drivers were responsible for providing their own transportation to and/or from the City garage, and/or their various relief points. The possibilities included driving their own vehicles, obtaining rides from family or friends, walking, or taking a fixed-route City bus. At some time during the 1980's, pursuant to a collective bargaining agreement with the United Transportation Union Local 1745, the City began to provide a shuttle service to and from relief points. The shuttle service evolved into its current format-shuttle vehicles driven by designated and exclusive shuttle drivers. Thus, a driver may use a City shuttle to go to or from the City garage and any relief point, at any time during the day. The shuttle service is optional, although many drivers use it. The drivers are not obligated to do anything in particular while riding these shuttles. They stated in response to interrogatories that their activities aboard the shuttles ranged from sitting, to talking with the shuttle driver and other passengers, to simply "waiting." Ex. D-6, Appendix of Pls. Resp. to Interrog. No. 23.

Bus drivers are not obligated to report either at the beginning or the end of the day, or the beginning or end of a shift, to the City garage if their particular route does not require it. In other words, each driver is obligated only to arrive on time at his or her starting point for a shift, and the City does not impose any requirements about where they go following the completion of a shift. The City has never compensated drivers for time spent going to or leaving relief points.

As indicated, most of the plaintiff drivers have worked split shifts. The length of the split shift period varies, but is usually between three and five hours. For purposes of this appeal, the split shift periods are at least one hour.⁴

Drivers are permitted to do anything they wish during their split shift periods, except drink alcohol. Drivers testified about the various things they did during these periods: some went home; some slept in City parks or in nearby air-conditioned buildings; some ran errands; some passed time in the City library or museum; some read; some ate; and one brought her mobile home and spent her split shift in that. If a bus driver was called to a meeting or required to perform any work-related duty during his or her split shift period, the City compensated the driver for that time. Otherwise, the City has never compensated drivers for time spent on split shift periods.

The drivers brought this action under the FLSA, seeking unpaid overtime wages and an equal amount as liquidated damages, an injunction prohibiting future FLSA violations, and attorneys' fees and costs. As indicated, both sides filed motions for summary judgment.⁵ The district court held:

1. Time spent by Plaintiffs in traveling in City operated shuttles to relief point for their first or only bus run of the day and from their last or only bus run of the day is not hours worked under the Portal to Portal Act.

2. Time spent by Plaintiffs in traveling in City operated shuttles from a relief point after their first run of the day or to a relief point for their second run of a day when the Plaintiffs work a split shift is not subject to the Portal to Portal Act's exclusion and is compensable.

3. Time spent which is one hour or more between split runs is not spent predominately for the benefit of the City and is not compensable. Periods of time of less than one hour between split runs present an unresolved fact issue.

4. The City and the individual Defendants in failing to compensate for the shuttle time described in paragraph two above had a good faith belief that their conduct did not violate the Fair Labor Standards Act and thus Plaintiffs are not entitled to liquidated damages.

5. Plaintiffs have failed to prove that the City and individual Defendants acted wilfully with regard to their failure to compensate for the time described in paragraph two above. Therefore, the two year statute applies.

Order at ¶¶ 1-5, Appellant's App. at 42-43.

Recognizing that "the controlling question herein is novel and has not been previously ruled upon in this circuit," the district court granted an immediate appeal from its order. Id. at ¶ 6. We then granted the City's petition for permission to appeal under 28 U.S.C. § 1292(b). The drivers thereafter filed notice of their cross-appeal.

DISCUSSION

I. Jurisdiction Over Drivers' Cross-Appeal

The City sought and received permission to pursue an interlocutory appeal under 28 U.S.C. § 1292(b). The drivers did not seek permission to file their cross-appeal. Thus, we must consider whether we have jurisdiction over the cross-appeal.

"In order to consider the cross-appeal, we must exercise pendent appellate jurisdiction." Armijo v. Wagon Mound Public Schs., 159 F.3d 1253, 1264 (10th Cir.1998). The exercise of pendent appellate jurisdiction is discretionary. Id. We have observed that the Supreme Court has held that "pendent appellate jurisdiction generally should not be exercised over otherwise interlocutory appeals." Id. (citing Swint v. Chambers County Comm'n, 514 U.S. 35, 50-51, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995)). We, however, interpret Swint to permit the exercise of jurisdiction over such appeals in limited circumstances: "'pendent appellate jurisdiction might still be appropriate where the otherwise nonappealable decision is "inextricably intertwined" with the appealable decision, or where review of the nonappealable decision is "necessary to ensure meaningful review" of the appealable one.'" Id. (quoting Moore v. City of Wynnewood, 57 F.3d 924, 930 (10th Cir.1995) (quoting Swint, 514 U.S. at 51, 115 S.Ct. 1203)). We have further interpreted "inextricably intertwined" to include only situations where "the pendent claim is coterminous with, or subsumed in, the claim before the court on interlocutory appeal-that is, where the appellate resolution of the collateral appeal necessarily resolves the pendent claim as well." Moore, 57 F.3d at 930.

In this case, the City's interlocutory appeal, properly before us, challenges the district...