Daniel Leahy, James Martinez, Michael D. Moore v. City of Chicago, Illinois ( 1996 )

BAUER, Circuit Judge.

Chicago police officers sued the City of Chicago, alleging violations of the overtime provisions of the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (“FLSA”). The officers claimed various restrictions on their meal periods rendered those periods compen-sable work time under the FLSA The district court initially dismissed the ease, and we reversed and remanded for further development of the facts regarding the frequency and duration of interruptions during the meal periods. On remand, the district court granted the City’s motion for summary judgment, finding that the officers’ meal periods were not compensable work time under the FLSA. This time around we affirm, but on different grounds than the district court.¹

Section 7(a) of the FLSA requires employers to pay overtime to employees who work more than 40 hours in a workweek. 29 U.S.C. § 207(a). However, the FLSA allows public agencies engaged in law enforcement activities to calculate overtime for law enforcement personnel based on a 28 day work period rather than the standard seven day period. 29 U.S.C. § 207(k). Under section 7(k), the departments must pay overtime only when employees have “tours of duty which in the aggregate exceed” 171 hours in a 28 day period. 29 U.S.C. § 207(k)(l); 29 C.F.R. §§ 553.201(a), 553.230. The Chicago Police Department operates under section 7(k)’s exemption. Its officers work shifts of eight-and-one-half hours, which include one unpaid half-hour meal period. The crux of this lawsuit is whether the officers’ half-hour meal period is work time which should count towards the 171 hour limit beyond which they must receive overtime pay.² William Leahy and nineteen other current and former Chicago police officers initiated this action in state court in November 1989, claiming that the restrictions on their meal periods made those periods compensable work time under the FLSA. Those restrictions include: officers must receive permission from a dispatcher to take a meal period; officers must receive permission from a supervisor to leave their assigned districts during meal periods; officers must remain in uniform and comply with various rules governing conduct while in uniform; no more than two officers may congregate during a meal period without prior permission; officers in two-person units must take their meals at the same time; officers must be available to end their meals upon request; officers must respond to emergencies and requests for assistance by the public; and officers must be available by radio to the dispatcher.

The City moved for summary judgment on two grounds. First, the City contended that the Portal-to-Portal Act, 29 U.S.C. § 259, barred the suit because the police department had based its practice of excluding the half-hour meal periods from compensable work time on a good faith reliance on a Department of Labor Letter Puling. Second, the City asserted that the collective bargaining agreement between the City and the police officers declared that the officers’ meal periods are not compensable work time, and therefore served as a complete defense to the lawsuit. The district court rejected both grounds upon which the City based its motion, and instead granted summary judgment on the merits, finding that the restrictions on the officers and the interruptions during their meal periods did not make the meal periods compensable time under the FLSA. We review the district court’s summary judgment determination de novo.

The plaintiffs argue that the district court improperly granted summary judgment on the merits because discovery was not complete on the issue of the frequency and duration of interruptions during officers’ meal periods. The City concedes this, and therefore does not defend the district court’s reasoning. Instead, the City justifies the grant of summary judgment on a ground the district court rejected — that the collective bargaining agreement between the City and the police officers satisfies the FLSA by providing that officers will receive overtime pay if they work a full eight hours and also work during their meal period. Both parties acknowledge that discovery was complete as to this issue. We agree that the collective bargaining agreement protects the plaintiffs’ rights to overtime compensation under the FLSA, and affirm the grant of summary judgment on that basis. Flynn v. Sandahl, 58 F.3d 283, 289 (7th Cir.1995).

Collective Bargaining Agreement

The Fraternal Order of Police (“FOP”) has acted as the collective bargaining representative of most Chicago police officers since 1979. During that time, the FOP and the City have entered into several collective bargaining agreements providing for fixed salaries for officers, as well as overtime pay at the rate of time-and-one-half for all hours worked in excess of eight hours in a day or 40 hours in a week. A memorandum of understanding attached to all of the collective bargaining agreements sets out certain benefits, including a half-hour meal period during each tour of duty. The collective bargaining agreements establish a grievance procedure for disputes about the interpretation or application of the agreement, and provide for arbitration before a neutral party for those disputes not resolved during the grievance procedures. It is undisputed that the FOP never has filed a grievance asserting that the uncompensated half-hour meal period constitutes a breach of the collective bargaining agreement.

Under the FLSA, employers and employees may make “reasonable provisions of contract [to guide] the computation of work hours where precisely accurate computation is difficult or impossible” See Tennessee Coal, Iron & Railway Co. v. Muscoda Local No. 123, 321 U.S. 590, 603, 64 S.Ct. 698, 705, 88 L.Ed. 949 (1944). See also Skidmore v. Swift & Co., 323 U.S. 134, 136-37, 65 S.Ct. 161, 163, 89 L.Ed. 124 (1944); Bowers v. Remington Rand, Inc., 159 F.2d 114, 116 (7th Cir.1946), cert. denied, 330 U.S. 843, 67 S.Ct. 1083, 91 L.Ed. 1288 (1947). This means that employers and employees may resolve whether certain activity is “work” through a collective bargaining agreement, as long as the agreement comports with the FLSA. See Beaston v. Scotland Sch. for Veterans’ Children, 693 F.Supp. 234, 239 (M.D.Pa.1988), aff'd, 869 F.2d 587 (3d Cir.1989). Here, if the collective bargaining agreement’s guarantee of overtime compensation for time worked in excess of eight hours in an eight-and-one-half hour tour of duty protects Chicago police officers’ FLSA rights to overtime compensation, then the agreement is a defense to liability under the FLSA and the plaintiffs’ suit cannot succeed. This makes perfect sense in situations where it is difficult to define precisely what constitutes working time.

Here, the collective bargaining agreement provides that “[a]ll time in excess of the hours worked in a normal workday (8 hours) and the normal workweek (40 hours) shall be compensated” at the rate of time-and-one-half. If an officer works more than eight hours, the officer is entitled to overtime pay. The parties’ agreement therefore assumes that generally an officer is not working during a meal period, but provides for appropriate compensation when an officer actually does work during the meal. In fact, as the City argues, the collective bargaining agreement actually is more generous than the FLSA, which provides for overtime compensation only when an officer works more than 171 hours in a 28 day period.

The district court found that the collective bargaining agreement did not specifically address whether meal periods were compensable work time, and therefore the agreement by itself could not support summary judgment in favor of the City. In our previous opinion, which was based on a less developed record than we have here, we suggested in a footnote that the collective bargaining agreement was only one factor to consider in determining whether meal periods are compensable work time. Alexander v. City of Chicago, 994 F.2d 333, 339 n. 11 (7th Cir.1993). However, upon further review, we conclude that the collective bargaining agreement can and does outright preclude the plaintiffs’ claim. The agreement clearly states that an officer is entitled to overtime rates for hours worked in excess of eight hours per day. If an officer works more than eight hours in a day as a result of working during a meal period, the City will pay overtime rates for the excess work time. The FLSA requires no more. Alexander, 994 F.2d at 345 (Bauer, C.J., dissenting).

Indeed, the individual inquiry facilitated by the grievance process is the most efficient way to determine whether an officer’s meal period should be compensable work time. The situation here — a police department of some 12,000 officers in different districts with different shift schedules and different exigencies arising each day that might affect officers’ meal periods — is not conducive to a one-shot solution. The officers want just such a solution: because some officers on some days miss all or part of their meal periods, the plaintiffs want all meal periods to be compensable work time. That would brook a result we cannot sanction, where officers might be paid for doing nothing more than eating during their meal periods. Instead, we conclude that the collective bargaining provision guaranteeing overtime pay to officers who work more than eight hours in a day compensates officers if they work during their meal periods, and therefore fully protects the officers’ FLSA rights.³

CONCLUSION

For the foregoing reasons, we affirm the district court’s order granting the City’s motion for summary judgment.

Affirmed.

1 . This case represents four consolidated appeals: Leahy v. City of Chicago (No. 95-2015), Alexander v. City of Chicago (No. 95-2016), Accosta v. City of Chicago (No. 95-2017), and Arkana v. City of Chicago (No. 95-2018).

2 . Although FLSA does not define "work," two regulations set out the circumstances in which meal periods may be excluded from the calculation of hours worked. First, 29 C.F.R. § 785.19(a) provides:

(a) Bona fide meal periods. Bona fide meal periods are not worktime. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals.... The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating.

29 C.F.R. § 785.19(a). 29 C.F.R. § 553.223(b), which applies to agencies that elect to use the § 7(k) exception, permits the exclusion of meal periods from the calculation of hours worked on tours of duty of 24 hours or less

provided that the employee is completely relieved from duty during the meal period, and all the other tests in § 785.19 of this title are met. On the other hand, where law enforcement personnel are required to remain on call in barracks or similar quarters, or are engaged in extended surveillance activities (e.g., “stakeouts”), they are not considered to be completely relieved from duty, and any such meal periods would be compensable.

29 C.F.R. § 553.223(b).

With these regulations in mind, we and other circuit courts have adopted the "predominant benefit” test for determining whether meal periods constitute compensable work time under the FLSA. See, e.g., Alexander, 994 F.2d at 337; Avery v. City of Talladega, 24 F.3d 1337, 1345 (11th Cir.1994); Henson v. Pulaski County Sheriff Dept., 6 F.3d 531, 534 (8th Cir.1993); Lamon v. City of Shawnee, 972 F.2d 1145, 1155-57 (10th Cir.1992), cert. denied, 507 U.S. 972, 113 S.Ct. 1414, 122 L.Ed.2d 785 (1993). An employee is considered to be completely relieved from duty during a meal period when the employee’s time is not spent predominantly for the benefit of the employer. Alexander, 994 F.2d at 337. The FLSA requires compensation for meal periods during which a police officer cannot comfortably and adequately spend the mealtime because the officer's time or attention is devoted primarily to official responsibilities. Lamon, 972 F.2d at 1155-56. If during meal periods a police officer’s time and attention are primarily occupied by a private pursuit, presumably the procurement and consumption of food, then the officer is completely relieved from duty and is not entitled to compensation under the FLSA. Id. at 1157.

3 . Some of the plaintiffs are sergeants, who are not covered by the collective bargaining agreement because of their rank. Sergeants receive one-half hour of overtime compensation in addition to eight hours of regular pay for each eight- and-one-half-hour tour of duty that they work. The tour of duty includes one half-hour meal period. Sergeants therefore work an eight-and-one-half hour tour of duty and get paid for eight- and-one-half hours. The FLSA requires no more than this.