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REICH v. NEW YORK CITY TRANSIT AUTH.

December 13, 1993

ROBERT B. REICH, Secretary of Labor, United States Department of Labor, Plaintiff,
v.
NEW YORK CITY TRANSIT AUTHORITY, A Corporation, Defendant.


SPATT


The opinion of the court was delivered by: ARTHUR D. SPATT

SPATT, District Judge.

 This is an action by the Secretary of Labor ("the Secretary") brought pursuant to the Fair Labor Standard Act of 1930, as amended (29 U.S.C. § 201 et seq.) ("FLSA") to enjoin the defendant New York City Transit Authority ("TA") from violating the provisions of the FLSA with regard to the transportation of canines ("canines" or "dogs") by the New York City Transit Authority Police Department ("TAPD") Canine Unit.

 The issue is whether the hours spent traveling from the police officer dog handler's home to the place of work and the return trip to the home of the handler transporting a canine of the TAPD, constitutes compensable hours under the FLSA and the Regulations promulgated under the FLSA (29 C.F.R. 785 and 29 C.F.R. 790.7[d]).

 BACKGROUND

 The defendant TA is a public benefit corporation engaged in the operation of transportation units in the City of New York including the subway system. The New York City Transit Authority Police Department is the police and law enforcement arm of the TA. With regard to the issues in this case, the TA admits it is an employer within the meaning of Section 3(d) of the FLSA (29 U.S.C. § 203[d]); it is an enterprise within the meaning of Section 3(r) (29 U.S.C. § 203[r][1]; and it employs "certain employees" within the meaning of Section 3(s)(6) (29 U.S.C. § 203[s][6]) of the Act.

 The TAPD contains a canine unit first established in 1980. The canine unit consists of police officers known as "handlers" and the canines. These TAPD police dog handlers patrol the New York City subway system accompanied by male German Shepherd dogs weighing between 75 to 110 pounds. The canine teams are used to deter criminal activity and assist in the detection and prevention of crimes.

 The police canine handlers are solely responsible for the care of the dogs assigned to them. They are required to personally transport the dogs and to personally care for the dogs at their homes. Their categorical mandate is to transport the dogs in their motor vehicles and not by public transportation. The TAPD handlers solely transport, feed, care for and train their police dogs.

 In a partial consent order approved by the Court in April 25, 1992, the parties settled all claims for uncompensated dog care duties and travel time for the period preceding October 15, 1990. In this consent order the parties also settled all claims for dog care duties performed at their homes for certain handlers for the period prior to the filing of the stipulation. Moreover, the parties consented to reserve for trial certain issues for the period commencing October 15, 1990, including the following:

 
"(A) Whether the hours spent traveling from the handler's home to his/her place of work and return, transporting a canine to be utilized by the Canine Unit of the New York City Transit Authority Police Department constitutes hours worked compensable under the Act and regulations found at 29 C.F.R. 785 and 29 C.F.R. 790.7(d);
 
(B) Whether the defendant violated sections 7 and 15 (a)(2) of the Act by failing to pay for the activity described in (A) above;
 
. . . .
 
(E) Whether plaintiff is entitled to an injunction restraining the withholding of unpaid overtime compensation for all employees for hours spent as described in (A) above;
 
. . . .
 
(G) Whether, in the event plaintiff prevails with respect to the issue set forth in (A) above, plaintiff is entitled to a permanent injunction enjoining defendant from future violations of the Act pursuant to § 17 of the Act with respect to employees of the Canine Unit of the New York Transit Authority Police Department."

 The Court bifurcated the trial so as to try liability and the plaintiff's request for injunctive relief, and reserved the issue of damages, if necessary, to a later date.

 CONTENTIONS

 The plaintiff Secretary contends that the TAPD canine handlers are entitled, under the law and regulations, to overtime wages for the time spent traveling from the handler's home to his/her place of work and the return trip transporting the canine. The Secretary further states that such travel time is compensable within the purview of the Fair Labor Standards Act and the Regulations at 29 C.F.R. Parts 785 and 790 (1993). Stated simply, the Secretary claims that the TAPD canine handlers should be compensated for their home-to-work-and return to home travel time while transporting the canines.

 On the other hand, the defendant contends that the handlers' travel time is not compensable merely because they are accompanied by the dogs. The defendant further asserts that the Department of Labor ("DOL") claim is barred by Section 4(a)(1) of the Portal-to-Portal Act. In addition, the defendant argues that the handlers' travel time is not compensable under an "integral and indispensable" analogy or as "travel between principal activity job sites."

 THE TRIAL - FINDINGS OF FACT

 This opinion and order includes the Court's findings of fact and conclusions of law as required by Fed. R. Civ. P. 52(a) (see also Colonial Exchange Ltd. Partnership v. Continental Casualty, 923 F.2d 257 [2d Cir. 1991]).

 During this discussion, the Court will make findings of fact which will be supplemented by additional findings later in the opinion.

 The trial counsel for the defendant was substantially correct when he said in his opening statement that "this case is almost entirely, if not exclusively, legal" (Tr. at p. 5). The testimony adduced by the twenty witnesses, including the nineteen dog handlers who testified, was enlightening to the Court on the duties and responsibilities of a dog handler, and, in particular, with regard to their canine transportation duties. However, the facts with regard to the compulsory transportation of the dogs by the handlers' motor vehicles, and the occurrences on such car rides with the dogs are essentially undisputed.

 THE PLAINTIFF'S CASE

 In fairly typical testimony, JOHN BENINTENDO, a sergeant in the TAPD, volunteered for the newly organized Canine Unit in 1980. He was a handler, assistant trainer and Director of training. A handler patrols the subways and other TA areas with his canine to deter crime, arrest suspects, search buildings and other duties. It is necessary for the handlers to take their dogs home to be fed and otherwise cared for. It is the sole responsibility of the handler to transport by car, feed, house and care for his or her dog. The object of the sole responsibility by the handler in transporting and caring for the dog is to create a bond between the handler and the dog.

 The dogs, all male German Shepherds, are given aggression training, are taught to bite culprits, obedience to the handler and to respond to threats to their handlers. While it may be a strange use of the term to a lay person, most of the TAPD dog handlers, considered their dog to be a "tool" as well as a pet. In another unusual concept, they likened the transportation of their dog as a tool, to the carrying of their gun.

 There is a single reporting place for the handlers and their dogs; the Brooklyn Army Terminal ("Terminal" or "BAT"). All the dog handlers are instructed that the dogs must be transported to and from work by car and not by public transportation. Significantly, if a handler is sick and unable to work, another police officer is sent to the handler's home to transport the dog to the Terminal by car. That person is paid for traveling time (see Tr. p. 42)

 As to the transportation of the dog in the handler's car, it is the responsibility of the handler to tend to the dog during the trip. The vicissitudes of a trip by car with the German Shepard dog trained to be aggressive, consumed most of the trial time. In a fairly common experience, Sgt. Benintendo testified as follows:

 
"Q During training did you communicate to the handlers that they had any type of responsibility toward the canine during transporting that dog to and from work?
 
A Yes. That he should be attended to even in the car. He needs water in the car also, if it is a long ride home, he may have to stop the car, walk the dog. He may have to drive a little more defensively, when you have a volatile object in the back of the car.
 
. . . .
 
Q Do you have an opinion as to while the handler transports the dog to and from work as to where the handler's direction -- attention is directed?
 
A It is two phased. He has to keep track of the road, that's natural. And he should be aware of what the canine is doing.
 
Q Under what circumstances would the handler have to interact or do something to the canine, to the dog?
 
A Well, if he started panting and being restless, it is a behavior sign of the dog being in some stressful situation, maybe he has to be walked or he is going to throw up or whatever. And he should investigate the further.
 
Q Have you been aware of situations where the canine has thrown up in the car?
 
A Yes, my assigned canine has thrown up in the car many times.
 
Q Is this something that would acquire (sic) immediate attention?
 
A Yes. The well-being of the dog is always immediate, and secondary is driving the rest of the trip with that unwarranted objects and feces and vomit in the car. You have to take care of that, too, treat it out" (Tr. at pp. 45, 51-51).

 Sgt. Benintendo was of the opinion that the handler's social activity after work is diminished because the handler has to take the dog directly home.

 A common trait with regard to all the dog handler witnesses is that they love dogs. The handlers are permitted to "adopt" the dogs after the canines reach retirement age. The Court finds that these special members of the TAPD accept the canine assignments because they want to work with dogs and know that, after a number of years, they will acquire a valuable pet.

 The TA pays for many of the dog expenses, including food, veterinary treatment and parking fees. At the inception of their assignment, each TAPD dog handler was advised that there would be no travel time compensation and they willingly accepted the duty without such compensation. Further, the union contract governing the TAPD does not require that the canine handlers be compensated for travel time and such compensation has never been paid.

 The Court finds that the usual transportation of the dogs to and from work is affected by the presence of the dog when the dog becomes sick or unruly. For example, Sgt. Benintendo testified that he had to stop his car and walk his dog on more than twenty occasions a year.

 KEITH SAINTEN, another TAPD dog handler, testified that while transporting his dog, the animal is kept in the back seat. This is apparently the uniform method of traveling with the canine in the car. Sainten's dog, who weighs 75 to 80 pounds, reacts to people who approach his car, as follows:

 
"Q And I believe you testified that Pete's reaction to windshield washers, prostitutes, kids or someone else who approaches the car; is that correct?
 
A Yes.
 
Q And how does he react?
 
A He would be barking at them. He would jump up and bark at them, lunges toward them.
 
Q Do you take corrective action?
 
A Yes.
 
Q How do you do that?
 
A I have to hold him. If he sees a dog he goes after them also. And I have to hold him.
 
Q Has he ever seen a dog or someone out the front windshield?
 
A Yes.
 
A Lunges toward the front of ...

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