Wells v. City of Fairmont, No. 15706

CourtSupreme Court of West Virginia
Writing for the CourtPER CURIAM; HARSHBARGER
Citation318 S.E.2d 463,173 W.Va. 519
Parties, 26 Wage & Hour Cas. (BNA) 1544, 101 Lab.Cas. P 55,480 Norman E. WELLS, et al. v. CITY OF FAIRMONT, etc.
Decision Date12 July 1984
Docket NumberNo. 15706

Page 463

318 S.E.2d 463
173 W.Va. 519, 26 Wage & Hour Cas. (BNA) 1544,
101 Lab.Cas. P 55,480
Norman E. WELLS, et al.
v.
CITY OF FAIRMONT, etc.
No. 15706.
Supreme Court of Appeals of West Virginia.
July 12, 1984.
Dissenting Opinion July 23, 1984.

Page 464

[173 W.Va. 520] Syllabus by the Court

"When the record in an action or suit is such that an appellate court can not in justice determine the judgment that should be finally rendered, the case should be remanded to the trial court for further development." Syllabus Point 2, South Side Lumber Co. v. Stone Constr. Co., 151 W.Va. 439, 152 S.E.2d 721 (1967).

Rodney Merrifield, Roger D. Curry, Fairmont, for appellants.

George R. Higinbotham, Fairmont, for appellee.

PER CURIAM:

In this appeal from a summary judgment, three employees of the City of Fairmont allege that the Circuit Court of Marion County erred in permitting the City certain offsets against their overtime wage compensation awards. 1 Due to the insufficiency of the record, we are not able to determine whether the offset against each award was proper. Therefore, we remand the case for further development.

The plaintiffs were employed as operating technicians in the City's water filtration plant. The established employment schedule required the plaintiffs to work fifteen consecutive eight-hour days, followed by six days off. The plaintiffs sued the City claiming this work schedule resulted in their being denied overtime wages.

After the suits were filed, the City answered and filed a notice of offer of judgment under Rule 68(b) of the West Virginia Rules of Civil Procedure 2 and deposited with the circuit clerk: $2,281.56 for Wells; $2,527.53 for Pettit; and $4,034.84 for Manley. The plaintiffs, pursuant to Rule 68(b)(3), notified the City that they accepted tender as part payment and would proceed on the issue of damages.

Subsequently, the parties appeared before the court on the City's motion for summary judgment and a final order was entered on March 24, 1982. From the plaintiffs' brief, it appears that the circuit court was presented with a stipulation as to certain figures that represented total amounts of overtime owed to the three plaintiffs, i.e. Wells, $19,064.91; Pettit, $10,943.20, and Manley, $16,907.42. 3 Neither[173 W.Va. 521] the factual stipulation nor the basis for calculating these figures is contained in the record before us. 4

The court entered a summary judgment order which contained the following findings:

"1. That the defendant's Motion for Summary Judgment is granted as to amounts in excess of $2,281.56 for plaintiff

Page 465

Wells, $2,527.53 for plaintiff Pettit, and $4,034.84 for plaintiff Manley, and judgment is awarded in favor of the plaintiffs and against the defendant in these amounts.

"2. The defendant is entitled to offset total wages paid to plaintiffs during their entire period of employment with defendant against wages claimed due and owing by plaintiffs.

"3. The plaintiffs' attorneys, Rodney B. Merrifield and Roger Curry, shall not receive any attorneys fee from defendants for their representation of plaintiffs herein."

The sole issue argued on appeal is whether the City is entitled to offset the amount due for overtime with a specified amount of regular wages already paid. It is difficult to determine from the above-quoted portion of the court's order if this is the correct issue. The court's finding Number 2 permits the City to offset the total wages paid the plaintiffs against the claimed overtime, which was the only wage issue being litigated. It would be unreasonable to take the total regular pay made to the plaintiffs, over which there was no dispute, and use it as an offset against overtime pay owed.

However, as we pointed out earlier, the real problem is that we lack a record that gives us any calculations to determine how the ultimate overtime pay figures were derived. Nor do we have any figures or calculations that would enable us to determine what the City paid in wages and how any credit it wishes to offset is computed.

We have traditionally held, as illustrated by Syllabus Point 2 of South Side Lumber Co. v. Stone Constr. Co., 151 W.Va. 439, 152 S.E.2d 721 (1967), that where a correct legal determination cannot be made because of the lack of an adequate record, we will remand the case:

"When the record in an action or suit is such that an appellate court can not in justice determine the judgment that should be finally rendered, the case should be remanded to the trial court for further development."

See also White v. Bordenkircher, W.Va., 286 S.E.2d 686 (1982); Young v. Young, 158 W.Va. 521, 212 S.E.2d 310 (1975); Painter Motors, Inc. v. Higgins, 155 W.Va. 582, 185 S.E.2d 502 (1971).

Consequently, we remand this case to the Circuit Court of Marion County to permit the parties to more fully develop the record.

Remanded.

HARSHBARGER, Justice, dissenting:

I must dissent from the majority's decision to remand this case without deciding anything.

The record has sufficient material facts for us to work with: these plaintiffs were required to work a three-week rotation schedule consisting of fifteen consecutive eight-hour workdays followed by six consecutive days off, and they were paid fixed weekly salaries regardless of the number of hours they actually worked in any particular week, and received no overtime compensation of any kind. The city admitted that it was obligated to pay overtime compensation for those weeks in which the plaintiffs worked hours in excess of the statutory maximum.

The only dispute was whether the city could credit against its total liability for overtime compensation, the salaries paid in those weeks during which plaintiffs worked less than the statutory maximum number of hours. The city said that the full salary paid in such weeks, or some portion thereof,[173 W.Va. 522] was intended as partial compensation for excess hours worked in other weeks, and the trial court agreed, permitting the city "to offset total wages paid to plaintiffs during their entire period of employment with defendant against wages claimed due and owing by plaintiffs."

I agree with the majority that neither the set-off amount nor the calculations employed to arrive at that figure is in the record. However, the principal question here is not whether the circuit court correctly calculated the amount to be deducted from the overtime compensation now due, but rather whether the court could make

Page 466

any such deduction. W.Va.Code, 21-5C-1, et seq. That is purely legal and can be resolved upon the facts stated above and the applicable statutes.

The purpose of our wage and hour law is to eliminate working conditions detrimental to minimum standards of living necessary for health, efficiency and general well-being of workers through the regulation of minimum wages and maximum hours of employment. See 48A Am.Jur.2d Labor and Labor Relations § 2210 (1979). In furtherance of this objective, our legislature provided in W.Va.Code, 21-5C-3(a), that:

no employer shall employ any of his employees for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate of not less than one and one-half times the regular rate at which he is employed. 1

This language is almost identical to the overtime compensation provisions of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201, et seq., 2 after which our statute is patterned. See Kucera v. City of Wheeling, 158 W.Va. 860, 869, 215 S.E.2d 216, 221 (1975) (Sprouse, J., dissenting).

Federal courts have concluded that the federal act takes the workweek 3 as the standard and inflexible work unit for computing overtime compensation. See, e.g., Black v. Roland Electrical Co., 68 F.Supp. 117, (D.Md.1946), modified on other grounds, 163 F.2d 417 (4th Cir.1947), cert. denied, 333 U.S. 854, 68 S.Ct. 729, 92 L.Ed. 1135 (1948); United States v. Universal C.I.T. Credit Corp., 102 F.Supp. 179 (D.C.Mo.), aff'd, 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952). Consequently, it has been held that the act does not permit an employer to average hours worked in two or more workweeks in order to avoid paying overtime. Luther v. Z. Wilson, Inc., 528 F.Supp. 1166 (S.D.Ohio 1982); Mitchell v. Gatlin, 179 F.Supp. 260 (S.D.Miss.1959). "Thus, if an employee works 30 hours one week and 50 hours the next, he must receive overtime compensation for the overtime hours worked beyond the applicable maximum in the second week, even though the average number of hours worked in the 2 weeks is 40." 29 C.F.R. § 778.104 (1982).

In addition, those courts have concluded that allowing an employer credit for wages paid in non-overtime workweeks violates the concept of the workweek as the standard of time for computing statutory overtime, and that the amount of compensation due an employee under the act at each pay [173 W.Va. 523] period must be calculated on the basis of a single workweek. Black v. Roland Electrical Co., supra. See Freeman v. Blake, 84 F.Supp. 700 (D.Mass.1949); Hutchinson v. William G. Barry, Inc., 50 F.Supp. 292 (D.Mass.1943). See also United States v. Klinghoffer Bros., 285 F.2d 487 (2d Cir.1960); Luther v. Z. Wilson, Inc., supra.

Employers have been allowed "credits" against the obligation to pay statutory overtime for extra work in a workweek, only when an employer has actually paid some...

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7 practice notes
  • Pullano v. City of Bluefield, No. 16698
    • United States
    • Supreme Court of West Virginia
    • March 20, 1986
    ...of the case. See Local 313, International Association of Firefighters v. City of Morgantown, supra; Wells v. City of Fairmont, 173 W.Va. 519, 318 S.E.2d 463 (1984) (per In summary, we affirm the circuit court's conclusion that the Governor's recommendations in memoranda of days off for Stat......
  • Sommerville, Matter of, No. 17592
    • United States
    • Supreme Court of West Virginia
    • December 9, 1987
    ...to the trial court for further development." See also, Gooden v. Frisby, 176 W.Va. 547, 346 S.E.2d 66 (1986); Wells v. City of Fairmont, 173 W.Va. 519, 318 S.E.2d 463 (1984); White v. Bordenkircher, 169 W.Va. 239, 286 S.E.2d 686 (1982); Shannon v. Shannon, 168 W.Va. 108, 282 S.E.2d 288 (198......
  • Local 313, Intern. Ass'n of Firefighters v. City of Morgantown, No. 16125
    • United States
    • Supreme Court of West Virginia
    • October 17, 1984
    ...dissenting: I dissent for the reasons set out in my dissent, with which Justice McGraw agreed, in Wells v. City of Fairmont, W.Va., 318 S.E.2d 463 Justice McGRAW also joins me in this dissent. NEELY, Justice, dissenting in part and concurring in part: Although I concur in the result reversi......
  • Heydinger v. Adkins, No. 17508
    • United States
    • Supreme Court of West Virginia
    • July 22, 1987
    ...finally rendered, the case should be remanded to the trial court for further development." See also syllabus, Wells v. City of Fairmont, 173 W.Va. 519, 318 S.E.2d 463 (1984); syl. pt. 1, White v. Bordenkircher, 169 W.Va. 239, 286 S.E.2d 686 For the foregoing reasons, the judgment of the Cir......
  • Request a trial to view additional results
7 cases
  • Pullano v. City of Bluefield, No. 16698
    • United States
    • Supreme Court of West Virginia
    • March 20, 1986
    ...of the case. See Local 313, International Association of Firefighters v. City of Morgantown, supra; Wells v. City of Fairmont, 173 W.Va. 519, 318 S.E.2d 463 (1984) (per In summary, we affirm the circuit court's conclusion that the Governor's recommendations in memoranda of days off for Stat......
  • Sommerville, Matter of, No. 17592
    • United States
    • Supreme Court of West Virginia
    • December 9, 1987
    ...to the trial court for further development." See also, Gooden v. Frisby, 176 W.Va. 547, 346 S.E.2d 66 (1986); Wells v. City of Fairmont, 173 W.Va. 519, 318 S.E.2d 463 (1984); White v. Bordenkircher, 169 W.Va. 239, 286 S.E.2d 686 (1982); Shannon v. Shannon, 168 W.Va. 108, 282 S.E.2d 288 (198......
  • Local 313, Intern. Ass'n of Firefighters v. City of Morgantown, No. 16125
    • United States
    • Supreme Court of West Virginia
    • October 17, 1984
    ...dissenting: I dissent for the reasons set out in my dissent, with which Justice McGraw agreed, in Wells v. City of Fairmont, W.Va., 318 S.E.2d 463 Justice McGRAW also joins me in this dissent. NEELY, Justice, dissenting in part and concurring in part: Although I concur in the result reversi......
  • Heydinger v. Adkins, No. 17508
    • United States
    • Supreme Court of West Virginia
    • July 22, 1987
    ...finally rendered, the case should be remanded to the trial court for further development." See also syllabus, Wells v. City of Fairmont, 173 W.Va. 519, 318 S.E.2d 463 (1984); syl. pt. 1, White v. Bordenkircher, 169 W.Va. 239, 286 S.E.2d 686 For the foregoing reasons, the judgment of the Cir......
  • Request a trial to view additional results

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