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Alexander v. City of Evansville

July 24, 1997





Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. EV-89-151-C Gene E. Brooks, Judge.

Before PELL, KANNE, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Argued March 26, 1997

Decided July 24, 1997

It is well known that the Fair Labor Standards Act (FLSA), 29 U.S.C. sec. 201 et seq., requires employers to pay their employees for overtime work at a rate of time and a half. 29 U.S.C. sec. 207(a). Some employees, however, do not work a standard 40-hour week, and in their case application of this principle becomes more complicated. This case involves 28 firefighters from Evansville, Indiana, who have been pursuing their FLSA suit against the City since September 1989. The plaintiffs believe that their collective bargaining agreement with the City entitles them to more overtime compensation (principally in the form of compensatory time off) than the City was paying from 1987 to 1993, and also (under a different collective bargaining agreement) from 1994 to 1996. The district court, after a bench trial on part of the case, entered judgment for the City. It also granted summary judgment for the City on the claims relating to the 1994-1996 time period, and it granted summary judgment dismissing the International Association of Professional Fire Fighters, Local 357, from the case. We agree that the plaintiffs received all that was coming to them under the statute, and we therefore affirm.


In Evansville, the firefighters for many years have worked shifts that run nine days, 24 hours a day. The Evansville Fire Department maintains three such shifts over a 27-day tour of duty. Each individual firefighter therefore has always worked roughly 216 hours (24 x 9) over each 27-day cycle. (Time spent during the other 18 days of the cycle when they are on call for emergencies apparently does not count toward this total.) Firefighters are not paid by the hour; instead, they receive a paycheck bi-weekly, the amount of which is calculated by taking an annual salary and dividing it up. Because they are paid on a salary basis, the amount they receive does not vary depending on the actual number of hours worked. Nevertheless, the plaintiff firefighters agree that the Evansville firefighters had always worked 216 hours in a 27-day period for 22 years prior to trial.

For all that appears, everything was running smoothly under this system until the Supreme Court decided Garcia v. San Antonio Metro Transit Authority, 469 U.S. 528 (1985), which held that the Commerce Clause did not prevent Congress from imposing maximum hours and minimum wages on state and municipal employees under the FLSA. The next year, Congress amended the FLSA to give governmental employers more flexibility in meeting their overtime obligations, by allowing them to pay in the form of compensatory time off. 29 U.S.C. sec. 207(o). Against this background, in 1987 the City and Local 357 negotiated their collective bargaining agreement (CBA) for 1987. For the first time, the CBA included the following clause:

Both parties agree that all time worked beyond the allowable straight time maximum as provided by the Fair Labor Standards Act (FLSA) will be compensated with compensatory time as allowed by the FLSA.

The same clause appeared in the 1988, 1989-1990, and 1991-1993 CBAs.

The FLSA addresses the subject of the unorthodox work-week in 29 U.S.C. sec. 297(k), which provides that a firefighter with a work period of at least seven days but less than 28 days shall receive overtime compensation for all hours worked in excess of a number bearing the same ratio to the total days worked as 212 hours bears to 28 days. As 29 C.F.R. sec. 553.230(c) spells out, for a 27-day work period, the total number of regular hours for firefighters is 204 (because 212/28, or 7.57 hours per day, is roughly equal to 204/27, or 7.55). Initially, the City took the position that the firefighters' salary corresponded to 216 hours of work. Beginning in 1987, therefore, with the new CBA and Garcia governing its actions, it began giving the firefighters one-half hour of compensatory time off for each hour worked between 204 and 216 during each work period. This effectively meant, according to the City, that the firefighters were receiving their statutory "time and a half" for those overtime hours in a mixed form: 2/3 monetary compensation, 1/3 compensatory time.

The plaintiffs did not see it this way. In 1989, an Evansville city firefighter (whose name is not known from the record) filed a complaint with the U.S. Department of Labor on behalf of the firefighters, claiming that the City was incorrectly computing the compensatory overtime credits. In September of that year, three firefighters--Ron Tabor, Don Brown, and Fred Taylor--filed this suit in district court on behalf of themselves and others similarly situated. In response to the complaint lodged with the Department of Labor, Alice Hertli, an investigator from the Wage and Hour Division, met with representatives of the City and Fire Department administrators. She agreed with the firefighters and directed the City to begin crediting each firefighter with 18 hours of overtime pay for the hours worked between 204 and 216. Hertli threatened the City with fines if it did not comply. The City acquiesced for a period of time, but it eventually balked and returned to its former position of crediting only six hours overtime for the hours between 204 and 216. Meanwhile, this litigation was progressing. In 1994 many of the original plaintiffs settled their claims against the City (which had become concerned about its exposure for cash payments to retiring firefighters entitled to cash in accumulated compensatory overtime hours). After the settlement, the City apparently paid even the non-settling plaintiffs at the full 18 hour (time and a half) rate for a time, although it eventually again stopped this practice and returned to the six hour rate.

The language of the CBA remained unchanged until the Association and the City negotiated the 1994-1996 agreement. This time, they inserted the following specific language about overtime into the text:

The parties agree that all firefighters in suppression [i.e. on duty] receive straight-time monetary compensation to work two hundred sixteen (216) hours in each twenty-seven (27) day work period. The parties agree that in addition to straight time monetary compensation, all firefighters in suppression shall continue to receive additional premium pay of fifty percent (50%) for each hour worked in excess of the maximum hour standard of two hundred four (204) hours as established by the Fair Labor Standards Act. The parties agree that all firefighters in suppression shall receive compensation at a rate of no less than one and one half (1«) the firefighters' regular rate for each hour worked in excess of two hundred sixteen (216) in each twenty-seven (27) day work period. The parties agree that any and all overtime compensation required pursuant to this agreement and/or required pursuant to the Fair Labor Standards Act may be awarded in compensatory time off ...

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