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United States District Court, S.D. New York

June 23, 2004.


The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


Plaintiffs bring this action against the City of New York ("City") and its Police Department ("NYPD") (collectively, "defendants") on behalf of themselves and those similarly situated, alleging violations of the Fair Labor Standards Act ("FLSA").*fn1 Defendants now move to dismiss the first count of the Amended Complaint ("Count One") for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn2 Defendants also seek to join the Patrolmen's Benevolent Association ("PBA") and the Detectives' Endowment Association ("DEA") (collectively, "Unions") as necessary, non-aligned parties under Rule 19(a). For the reasons set forth below, defendants' motions to (1) dismiss Count One and (2) join the Unions are denied.


  A. Background

  Plaintiffs are current and former New York City police officers and detectives employed by the NYPD.*fn3 They are represented for collective bargaining purposes by the PBA and the DEA, respectively.*fn4 The collective bargaining agreements ("CBAs") entered into by the Unions and the NYPD govern the terms and conditions of their employment, such as compensation and overtime, number of hours worked per year, annual leave, length of each shift ("tour of duty"), and benefits.*fn5 Under these CBAs, police officers and detectives who have accrued overtime hours may either receive a monetary payment or time off as compensation for those hours. Specifically, both the PBA/NYC and DEA/NYC CBAs provide:

All ordered and/or authorized hours in excess of forty (40) hours in any week or in excess of the hours required of an employee by reason of the employee's regular duty chart if a week's measurement is not appropriate, whether of an emergency nature or of a non-emergency nature, shall be compensated for either by cash payment or compensatory time off, at the rate of time and one-half, at the sole option of the employee. Such cash payments or compensatory time off shall be computed on the basis of completed fifteen (15) minute segments.*fn6
B. The Complaint
1. Count One
  Count One is premised on defendants' policy of improperly disallowing plaintiffs' use of compensatory time off in violation of the FLSA.*fn7 In particular, plaintiffs aver that when City police officers and detectives who "originally received compensatory time off," request to take this time, they are routinely denied under circumstances "where no undue disruption of the City's operations would result."*fn8 Plaintiffs assert that defendants' compensatory time off system requires them to work for extended periods without the possibility of taking compensatory non-working days, resulting in the accrual of unpaid overtime hours.*fn9

  2. Other Claims

  The Complaint alleges four additional FLSA violations. First, plaintiffs argue that defendants routinely force police officers and detectives to "agree in advance to accept compensatory time off in lieu of cash compensation in order . . . to be eligible for specified overtime work opportunities."*fn10 In addition, where officers or detectives have earned cash compensation for a specific number of overtime hours (typically 35 hours per month or 105 hours per quarter), they are forced to accept compensatory time off in lieu of cash payment for any additional overtime hours.*fn11 Plaintiffs claim that defendants' policies are not authorized by the governing CBAs.*fn12 Second, plaintiffs state that defendants have assigned, and continue to assign, officers and detectives to schedules that require them to work more than 171 hours in a 28-day period, without adequate overtime compensation.*fn13 Third, plaintiffs claim that defendants' failure to include "shift differential and longevity pay in computing the regular rate of pay in which the named Plaintiffs and all similarly situated police officers and detectives have worked overtime" violates section 7 of the FLSA.*fn14 Fourth, defendants are accused of incorrectly calculating the hours worked by their employees, thereby depriving those employees of overtime hours earned.*fn15


  A. Rule 12(b)(6)

  "Given the Federal Rules' simplified standard for pleading, `[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'"*fn16 Thus, a plaintiff need only plead "`a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."*fn17 Simply put, "Rule 8 pleading is extremely permissive."*fn18

  At the motion to dismiss stage, the issue "`is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'"*fn19

  The task of the court in ruling on a Rule 12(b)(6) motion is "`merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'"*fn20 When deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must accept all factual allegations in the complaint as true and draw all reasonable inferences in plaintiff's favor.*fn21

  B. Rule 19(a)

  Rule 19(a) provides that a person subject to service of process whose joinder will not deprive the court of jurisdiction must be joined in an action if:

(1) in the person's absence complete relief cannot be accorded among those already parties, or
(2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may
(i) as a practical matter impair or impede the person's ability to protect that interest or
(ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party.
If such a person cannot be joined, then the court must consider whether "in equity and good conscience" the case should be dismissed.*fn22 Rule 19 protects several interests: the parties' interest in obtaining a complete resolution of their dispute, the interests of others who might be prejudiced if the matter were decided in their absence, and the public's interest in avoiding multiple lawsuits on the same subject matter.*fn23


  A. Motion to Dismiss

  In order to evaluate whether Count One states a claim, this Court must first determine the meaning of section 7(o) of the FLSA. When confronted with a question of statutory interpretation, the Supreme Court has counseled that before reviewing an interpretation of an administrative agency, a court must first determine whether the "intent of Congress is clear" and the meaning of the statute is unambiguous.*fn24 If the court finds that congressional intent as to the disputed issue is clear, then contrary administrative constructions must be rejected. However, if a court finds that the statute is "silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute."*fn25 1. FLSA Section 7(o) and Department of Labor ("DOL") Regulations

  Section 7(o) of the FLSA provides that, under limited circumstances, public agencies may use compensatory time off (at a rate not less than one-and-one-half hours per hour of overtime compensation owed) in lieu of overtime pay.*fn26 The use of compensatory time is only permissible: (1) when granted pursuant to "applicable provisions of a collective bargaining agreement, memorandum of understanding, or any other agreement between the public agency and representatives of such employees" or "an agreement or understanding arrived at between the employer and employee before the performance of the work" and (2) where "the employee has not accrued compensatory time in excess of the limit applicable to the employee [under the FLSA]."*fn27

  Under the FLSA, an employee of a qualifying public agency:

(A) who has accrued compensatory time off . . ., and
(B) who has requested the use of such compensatory time, shall be permitted by the employee's employer to use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the public agency.*fn28
  The DOL, which is responsible for the administration, interpretation, and application of the FLSA, has promulgated regulations explaining various provisions of the act. For instance, section 553.25 states that "[s]ection 7(o)(5) . . . provides that any employee of a public agency who has accrued compensatory time and requested use of this [] time, shall be permitted to use such time off within a `reasonable period' after making the request, if such use does not `unduly disrupt' the operations of the agency."*fn29 The DOL regulations further provide that an employee has the right to use her compensatory time off and "must not be coerced to accept more compensatory time than an employer can realistically and in good faith expect to be able to grant within a reasonable period of his or her making a request for use of such time."*fn30

  The regulations set forth the agency's interpretation of the phrase "reasonable period": Whether a request to use compensatory time has been granted within a "reasonable period" will be determined by considering the customary work practices within the agency based on the facts and circumstances in each case. Such practices include, but are not limited to (a) the normal schedule of work, (b) anticipated peak workloads based on past experience, (c) emergency requirements for staff and services, and (d) the availability of qualified substitute staff.*fn31

 However, the regulations also provide that to the extent that the phrase "reasonable period" is already defined in the governing CBA, the CBA will control.*fn32 The regulations also define the term "unduly disrupt":

When an employer receives a request for compensatory time off, it shall be honored unless to do so would be "unduly disruptive" to the agency's operations. Mere inconvenience to the employer is an insufficient basis for denial of a request for compensatory time off. For an agency to turn down a request from an employee for compensatory time off requires that it should reasonably and in good faith anticipate that it would impose an unreasonable burden on the agency's ability to provide services of acceptable quality and quantity for the public during the time requested without the use of the employee's services.*fn33
2. Interpretation of Section 7(o) of the FLSA
  The parties dispute the meaning of the words "reasonable period" in section 7(o) of the FLSA. On the one hand, plaintiffs argue that these words could refer to the period of advance notice preceding the date(s) on which the employee seeks to use her compensatory time.*fn34 Under this interpretation, if reasonable notice is given, the employer must allow the employee to take those specifically requested days off, unless undue disruption to its operations would result. On the other hand, defendants contend that this phrase refers to a time period reasonably proximate to the specific day requested.*fn35 Under this view, an employer is only obligated to permit the employee to use her compensatory time within a reasonable time span prior to or following the asked-for date(s).

  Not surprisingly, both parties assert that adoption of their opponents' interpretation fails to give effect to every clause of the statute. Specifically, plaintiffs argue that defendants' reading abrogates the "unduly disrupt" standard and defendants' contend that plaintiffs' reading renders the words "within a reasonable time after making the request" superfluous.*fn36

  This Circuit has not yet interpreted section 207(o) and support exists for both plaintiffs' and defendants' positions. In recent decisions, the Fifth and Ninth Circuits have concluded that the statute unambiguously permits an employer to grant compensatory time off within a reasonable time from the date requested by the employee, unless it would unduly disrupt the employer's operations.*fn37 Finding the statutory language unambiguous, they did not consider the DOL's view of the statute. But this interpretation stands in direct opposition to the opinion of at least one district court and the DOL.*fn38

  In 2003, the Fifth Circuit decided Houston, which presented the question of whether the FSLA "requires a public agency to allow its employees the use of accrued compensatory time on those days specifically requested by the employees, unless to do so would `unduly disrupt' the agency's function."*fn39 In that case, the police officers' union sued the City of Houston over the Houston Police Department's ("HPD") compensatory time policies. In particular, the HPD used a log known as the "Red Book," listing the officers scheduled to be off duty on any given day. The Red Book contained a limited number of spaces, corresponding to the shift commander's estimate of the unit's staff requirements. To use compensatory time, an officer had to sign his name in his unit's Red Book for the day(s) he wanted to take off, and if the slots were already filled, his request would, as a matter of policy, be denied. The court decided that:

The text of section 207(o)(5) plainly defines the period between the date the employee submits his request and the date the employer allows the employee to use the comp time: the employee "shall be permitted . . . to use such [comp] time within a reasonable period after making the request.". . . [M]andating a "reasonable period" for use of comp time is different from mandating the employee's chosen dates. The language offers a span of time to the employer, the beginning of which is the date of the employee's request.*fn40
In response to the argument that the words "unduly disrupt" suggest that the "reasonable period" refers to "the time between [the] intended and actual date of comp-time consumption,"*fn41 the court explained that:
[i]nstead of obscuring the proper object of the "reasonable period" clause, the "unduly disrupt" clause serves to clarify its obvious meaning. The "reasonable period clause" imposes upon the employer the obligation to facilitate the employee's timely usage of his accrued compensatory time. The "unduly disrupt" clause suggests conditions, however, that would release the public employer from the previously imposed condition. The statute, thus construed, reflects a balance between obligation and exemption.*fn42
  The Ninth Circuit recently decided a case involving similar circumstances. In Mortensen, a deputy sheriff for Sacramento County sued the county for its failure to permit him to use his compensatory time as requested: on "March 11, 2001 only."*fn43 The county scheduled leave by maintaining a log book in which the number of available slots corresponded to the employer's minimum staffing requirements. The Ninth Circuit adopted the reasoning of the Fifth Circuit, noting that "[p]rior Supreme Court authority and [Ninth Circuit authority] are in harmony with the Fifth Circuit's analysis."*fn44 The court concluded that "the text of § 207(o)(5) unambiguously states that once an employee requests the use of [compensatory time off], the employer has a reasonable period of time to allow the employee to use accrued time. Because the statutory language is unambiguous, we need not defer to the regulations and opinion letter."*fn45 The court did, however, turn to the regulations and the CBA to decide what constituted a "reasonable period."*fn46 Because the parties had entered into a CBA, providing for the mandatory use of compensatory time within one year of accrual, the court found that "the county [was] not in violation of the FLSA unless it fail[ed] to follow its leave book policy or refuse[d] to grant the use of [compensatory time off] within one year of a request."*fn47

  In DeBraska, plaintiffs, current and former Milwaukee police officers, argued that their employer routinely rejected applications for compensatory time on occasions when acceding to the officers' requests would not cause undue disruption.*fn48 The DeBraska court found the statute to be ambiguous. Accordingly, it gave considerable deference to the DOL's interpretation as presented in its regulations, opinion letters, and amicus brief submitted by the Secretary of Labor. These materials supported plaintiffs' interpretation — that "reasonable period" means that "the employee must give adequate notice that he wants to use comp time on a particular day, thereby giving the employer time to plan and to determine whether the request can be granted."*fn49 Defendant's view was that "reasonable period" refers to the "time period between the date the employee requests off and the date the city will actually allow him to take off."*fn50 The DeBraska court noted that "both readings [were] plausible" but ultimately decided that the view advanced by the Secretary and the plaintiffs was more reasonable. The court therefore concluded that, under the FLSA, "once the employee gives the employer a reasonable period within which to grant the request, the employer must do so unless undue disruption would result."*fn51

  In light of the case law interpreting section 207(o), plaintiffs' reading of the statute is not implausible. Nonetheless, the better view is that of defendants — that the "reasonable period" referenced in section 207(o)(5) refers to the time period between the date for which the employee applies for leave and the date on which that leave is actually granted. Section 207(o) contains a clear expression of congressional intent as to the disputed issue — the meaning of "reasonable period." For the reasons set forth by the Houston and Mortensen courts, the plain meaning of the statute is clear and gives effect to all of the provisions of the statute. For instance, the phrase "unduly disrupts" is not subsumed by the words "reasonable period," but provides an exception to the employer's statutory obligation to accommodate the employee's request within a "reasonable period." Because the FLSA is unambiguous with respect to this issue, exploration of the DOL's position on this matter is not warranted.

  3. Stating a Claim Under Rule 12

  For the reasons stated in the preceding section, to state a claim under section 7(o) of the FLSA, plaintiffs must allege that the NYPD and the City did not grant their applications to use compensatory time within a time period reasonably proximate to the date(s) requested. Further, they must assert that if defendants did not comport with this obligation, that their failure to do so was not excused by undue disruption to their operations.

  Crediting plaintiffs' averments as true and drawing all inferences in plaintiffs' favor, they have easily satisfied the liberal pleading requirements of Rule 8. First, they have alleged that defendants have made and continue to make no effort to honor their applications to take compensatory time on any date, reasonably close to the specific date(s) requested or otherwise.*fn52 Second, they have alleged that their requests are routinely denied without any assessment of undue disruption to defendants' operations.*fn53 Defendants have not shown that plaintiffs can prove no set of facts consistent with these allegations. Accordingly, defendants' motion to dismiss Count One of the Complaint is denied.

  B. Motion for Joinder

  1. General Principles Governing the Joinder of Unions

  "[B]ecause unions occupy a somewhat unique legal position, certain issues and problems [may] require special attention by courts called upon to decide questions of compulsory joinder."*fn54 As a general matter, "the union may be found to be a party to be joined if feasible under Rule 19(a) in actions brought by employees against their employers requiring an adjudication that might have a significant impact on the collective-bargaining agreement because of the union's interest in the operation of that contract."*fn55 However, courts considering the joinder of unions in FLSA actions have generally found that under section 216(b), "unions lack standing to bring representative suits on behalf of their members under FLSA."*fn56 Similarly, unions are not proper defendants in FLSA actions. For instance, the overtime requirements apply only to "employers," a term that excludes unions except where the union employs individuals.*fn57

  2. Joinder of Unions in FLSA Actions

  As an initial matter, the parties disagree as to whether there is any basis for joining a labor union in an FLSA action. Defendants do not seriously dispute that the Unions are not properly joined as either plaintiffs or defendants.*fn58 Rather, they contend that the Unions should be joined as "necessary, non-aligned parties."*fn59 Plaintiffs counter that defendants are "asserting a position that is contrary to law."*fn60

  Defendants' request must be viewed in the context of FLSA litigation and as plaintiffs note, there is a bias "against labor organizations participating in any way in FLSA lawsuits."*fn61 In other employment-related contexts, the joinder of labor organizations may be proper, particularly where the decision may significantly impact the CBA. There is, however, no clear authority for compelling the participation of a union as a non-aligned party or otherwise, in an FLSA case where the plaintiffs seek money damages from their employers.

  Defendants seek to escape this general prohibition on the participation of unions in FLSA actions by contending that the Unions should be joined as neutral "non-aligned" parties. Significantly, of the relatively few cases that specifically recognize the concept of joining unions as "non-aligned parties,"*fn62 none involve FLSA claims relating to overtime compensation.

  Defendants offer two cases in support of the proposition that "in appropriate circumstances, the FLSA [] permit[s] unions to be parties or to be joined as non-aligned neutral parties."*fn63 But these cases — Houston*fn64 and Forsberg*fn65 — are not persuasive authority and are, in any case, distinguishable. First, as plaintiffs correctly observe, the Houston court "addressed the merits of an FLSA lawsuit brought by a labor organization without even considering the question of whether the labor organization was a proper party to the lawsuit."*fn66 Second, the Forsberg opinion cited by defendants did not address joinder.*fn67 Lacking in any rationale supportive of defendants' position, these cases do not support defendants' argument.

  Finally, the district court opinion in Forsberg involved joinder in the context of Title VII*fn68 and the Equal Pay Act.*fn69 Thus, Forsberg was decided in a slightly different context. But even if the equal pay claim asserted in Forsberg is analogous to the claim asserted here, the cases are distinguishable. Unlike this case, the importance of union participation in Forsberg is immediately evident. The gravamen of the Forsberg complaint was that defendants had paid discriminatory wage rates, which were bargained for and agreed to by the unions themselves. Thus, it was the enforceability of the term negotiated by the union that was at the heart of the dispute. Accordingly, the district court concluded that it was appropriate to "fashion relief" protecting the interests of all of the parties to guarantee "just adjudication" of the matter.*fn70 By contrast, the central issue presented by plaintiffs' Complaint is whether defendants' policies contravene the FLSA.*fn71 Thus, Forsberg does not support defendants' request for joinder under the circumstances presented herein.

  For the foregoing reasons, there is reason to doubt whether there is any judicial authority to join non-aligned parties in FLSA actions. However, insofar as it is possible to join a union in an FLSA action as a non-aligned party, the case law and the statute suggest that this type of joinder should not be granted lightly. Under the facts of this case, joinder is inappropriate.

  3. Joinder Under Rule 19(a)

  a. Rule 19(a)(1)

  Even if this Court has the authority to join the Unions as non-aligned parties, defendants have failed to establish that the Unions are "necessary" under Rule 19(a)(1). Defendants contend that, absent participation of the Unions, complete relief cannot be afforded to all of the present parties. Specifically, defendants argue that joinder is proper under Rule 19(a)(1), because absent participation by the Unions, complete relief will not be available to those already parties to this action. But defendants' argument lacks merit because plaintiffs seek only one form of relief — monetary damages. This relief can be awarded absent joinder by the labor unions.

  b. Rule 19(a)(2)

  Defendants submit that they are entitled to join the Unions because the Unions claim an interest relating to the subject of the action and their absence in this litigation may either prevent them from protecting that interest or expose defendants to inconsistent obligations.*fn72 However, the Unions do not claim a legal interest relating to this action.*fn73 Moreover, defendants' argument that the NYPD will be subject to inconsistent obligations is not persuasive. Defendants do not adequately demonstrate that there is a real possibility that the NYPD would be subject to conflicting obligations regarding the "claimed interest."*fn74 They argue:

[T]he NYPD will be subject to the very real risk that the Unions . . . will later take positions contrary to the rulings made by the Court in this case, and thereby expose the NYPD to future litigation and inconsistent obligations. For example, the Court may reject plaintiffs' claims in [Count Two] and hold that the NYPD's practices regarding alleged "forced" accrual of compensatory time comply with the FLSA. If the Unions are not parties to this action, however, the Unions could re-litigate the alleged "forced" accrual issue as a violation of the CBAs, or even as a violation of the FLSA.*fn75
This argument is speculative at best. Here, plaintiffs do not challenge provisions of the CBA themselves, but seek "compensation under the FLSA that is in addition to that required by the [CBA]."*fn76 Thus, the risk that defendants will be exposed to inconsistent obligations is relatively insignificant. Indeed, defendants do not describe how the Unions will be able to relitigate these issues, in light of the fact that they are not proper plaintiffs in an FLSA action.


  For the foregoing reasons, defendants' motions to dismiss Count One and to join the Unions are denied. The Clerk of the Court is directed to close these motions [Nos. 108 and 112 on the docket sheet]. A conference will be held in Courtroom 15C on July 9, 2004, at 4:30 p.m.


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