Abbott v. City of Virginia Beach

879 F.2d 132, 1989 WL 78709
CourtCourt of Appeals for the Fourth Circuit
DecidedJuly 19, 1989
DocketNo. 88-2958
StatusPublished
Cited by7 cases

This text of 879 F.2d 132 (Abbott v. City of Virginia Beach) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abbott v. City of Virginia Beach, 879 F.2d 132, 1989 WL 78709 (4th Cir. 1989).

Opinion

WILKINS, Circuit Judge:

The Virginia Beach Policemen’s Benevolent Association, its current and past presidents, the Virginia Beach Police Sergeants Association, its current president, and 126 individual Virginia Beach policemen (collectively, the Policemen) appeal from the grant of partial summary judgment in favor of the City of Virginia Beach on their claims for violation of the Fair Labor Standards Act of 1938 (FLSA), as amended, 29 U.S.C.A. §§ 201, etseq. (West 1978 & Supp. 1989). We affirm.

I.

From April 1, 1986 through January 21, 1988, the Virginia Beach Police Department (the Department) provided compensation to its officers for overtime at a rate of one and one-half times their regular pay rate as required by the FLSA, 29 U.S.C.A. § 207(a)(2). Pursuant to Department policy, each officer had the choice of receiving his overtime compensation in money or compensatory leave or any combination thereof.1 Thus, if an employee worked four hours overtime one day, he could elect to receive four hours overtime pay or four hours compensatory leave or any combination he chose. If the employee worked four hours overtime the néxt day, he could again make any election he chose. The officer exercised his option after each occasion of working overtime by submitting an Overtime and Leave Request form. On each occasion the employee’s choice would be automatically honored by the Depart ment.

The Policemen instituted this action claiming that the previous policy violated the FLSA, 29 U.S.C.A. § 207(o), because the Department refused to negotiate an agreement with their designated FLSA representatives 2 and promulgated the policy unilaterally. They sought a monetary award in exchange for their accrued compensatory leave and an equal amount as liquidated damages for alleged willful violation of the Act.3 The district court grant[134]*134ed partial summary judgment to the City holding that the policy complied with the FLSA. Abbott v. City of Virginia Beach, 689 F.Supp. 600 (E.D.Va.1988).

II.

As originally enacted, the FLSA was not applicable to state or local public employers. Congress later attempted to subject almost all state and local public agencies to the overtime and minimum wage requirements of the FLSA. However, the Supreme Court held that the requirements could not be enforced against public employers where traditional governmental functions were involved. Nat’l League of Cities v. Usery, 426 U.S. 833, 852, 96 S.Ct. 2465, 2474, 49 L.Ed.2d 245 (1976). In 1985 the Court overruled Usery, holding that Congress was not limited by the nature of the work in requiring public employers to comply with the FLSA. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 547, 105 S.Ct. 1005, 1015, 83 L.Ed.2d 1016 (1985).

After Garcia was decided, Congress amended the FLSA to enable public agencies to implement compensatory leave policies in lieu of monetary payments for overtime. Fair Labor Standards Amendments of 1985, Pub.L. No. 99-150, § 2(a), 99 Stat. 787 (1985) (added 29 U.S.C.A. § 207(o)). The amendment provides:

(1) Employees of a public agency which is a State, a political subdivision of a State, or an interstate governmental agengy 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.
(2) A public agency may provide compensatory time under paragraph (1) only—
(A) pursuant to—
(i) applicable provisions of a collective bargaining agreement, memorandum of understanding, or any other agreement between the public agency and representatives of such employees; or
(ii) in the case of employees not covered by subclause (i), an agreement or understanding arrived at between the employer and employee before the performance of the work....

29 U.S.C.A. § 207(o).

Virginia' law prohibits the Department from collectively bargaining with representatives of its employees. Commonwealth v. County Bd. of Arlington County, 217 Va. 558, 232 S.E.2d 30 (1977). Consequently, the Policemen do not have a collective bargaining agreement with the Department. Nevertheless, the Policemen challenged the Department policy on the ground that the Department did not reach an agreement with their designated employee representatives prior to promulgating the policy. The district court held that a subclause (i) agreement is “only required where state law permits state and local governmental entities to recognize representatives of their employees for collective bargaining purposes.” 689 F.Supp. at 603. The court concluded that the Department policy complied with section 201(6) since Virginia law prohibited the Department from entering into an agreement with its employees collectively. Id. at 604.

The Policemen contend that the district court erred in interpreting the term “representatives” to mean only recognized bargaining agents. They assert that any des-ignee of the employees is a representative, whether recognized or not, and that if public employees designate a representative, compensatory leave cannot be provided in lieu of cash for overtime unless an agreement is reached with the representative. They further assert that if a designation is made and the employer refuses to deal with the representative, the employer cannot reach individual agreements with the employees who made the designation — it must provide cash payment. According to the Policemen, the employee representative acts for only those officers who designate him and only for as long as they choose. In the Policemen’s view, the Department may enter into individual agreements with [135]*135the officers who do not designate a representative and any officer may withdraw his designation and contract individually with the Department at any time. Thus, the Policemen take the position that in order to utilize compensatory leave, the Department should be required to reach an agreement with a designated representative and be bound by the agreement while an officer who designated a representative could unilaterally opt out of the agreement if he became dissatisfied.

III.

The question here is whether section 207(o) permits public employers to enter into individual agreements with its employees to provide compensatory leave in lieu of money for overtime where state law prohibits the employer from entering into agreements with employee representatives. In construing section 207(o), the principal function of the court is to effectuate congressional intent. Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 1898, 44 L.Ed.2d 525 (1975). This is a difficult task since the statute does not define the term “representatives,” legislative history is contradictory, and administrative commentary is confusing.

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Abbott v. City Of Virginia Beach
879 F.2d 132 (Fourth Circuit, 1989)

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Bluebook (online)
879 F.2d 132, 1989 WL 78709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abbott-v-city-of-virginia-beach-ca4-1989.