Appendix — Dillard v. Harris

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——— | F DPANIOL, Jia

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eed

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

ALFREDA DILLARD, et al.,

Petitioners,

Wi

JOE FRANK HARRIS and GEORGIA

DEPARTMENT OF HUMAN RESOURCES,

Respondents.

- APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

JONATHAN HIATT WALTER KAMIAT

1313 L Street, N.W. LAURENCE GOLD ;

Washington, D.C. 20005 (Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5390

KATHLEEN L. WILDE

44 Forsyth Street, N.W.

Suite 202

Atlanta, GA 30303

WILSON - EPes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

® oGER> 00

Go 7 &

TABLE OF CONTENTS

Dillard v. Harris, Nos. 88-8245 & 88-8439 (11th

Cir., September 29, 1989) [885 F.2d 1549]

Dillard v. Harris, No. C86-834A (N.D. Ga.) (Order

of September 30, 1987) [685 F.Supp. 565 |

Dillard v. Harris, No. 1:86-CV-834-RCF (N.D.

Ga.) (Order of March 30, 1988)

Dillard v. Harris, Nos. 88-8245 & 88-8439) (11th

Cir., April 18, 1990) (Order denying petition for

I screeners ens dtd vesdiecnsctns va coecnons

29 U.S.C. § 207 (0) (1)-(2)

29 C.F.R. § 553.23

52 Fed. Reg. 2014-15 (January 16, 1987)

Legal Status of Public Employee Labor Organiza-

tions in Georgia, Op. Ga. Att’y Gen. 75-457

(1975)

Page

la

17a

26a

la

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Nos. 88-8245 & 88-8439

D.C. Docket No. 1:86-ev-834

ALFREDA DILLARD, et al.,

Plaintiffs-A ppellees,

versus

JOE FRANK HARRIS and GEORGIA DEPARTMENT OF

HUMAN RESOURCES,

Defendants-A ppellants.

Appeals from the United States District Court

for the Northern District of Georgia

(September 29, 1989)

Before RONEY, Chief Judge, HILL, Circuit Judge, and

HOWARD", Chief District Judge.

RONEY, Chief Judge:

* Honorable Alex T. Howard, Chief U.S. District Judge for the

Southern District of Alabama, sitting by designation.

2a

In this action for overtime pay pursuant to the Fair

Labor Standards Act, the defendants, Georgia’s Gov-

ernor and Department of Human Resources (“the

State”), appeal an injunction and a summary judgment

for the plaintiffs, Georgia state hospital employees (“the

employees”). We consolidated the two appeals, which

involve the same issue: whether the district court mis-

applied the provisions of the Fair Labor Standards Act

governing the awarding of compensatory time to state

employees for overtime work in lieu of cash payments.

The court ruled that the State must pay its employees

for overtime hours in the absence of a negotiated com-

pensatory-time agreement with the employees chosen

representative, even though such negotiation is prohib

ited by state law. Holding that where state law pro-

hibits agreements with employee representatives, public

employers may enter into individual overtime agree-

ments with employees, we reverse.

The issue in this case was recently addressed by the

Fourth Circuit in Abbott v. City of Virginia, 689 F.

Supp. 600 (E.D.Va. 1988), aff'd, F.2d , No. 88-

2958 (4th Cir. June 19, 1989). Since we agree with the

analysis made in Judge Wilkins opinion in that case, we

could simply state that we are following that case and

that the distinction in facts between that case and this

one do not dictate a different result. In so doing, we re-

fuse to follow the Tenth Circuit case which reached a

different result. International Association of Fire Fight-

ers, Local 2203 v. West Adams County Fire Protection

District, No. 88-1691 (10th Cir. June 9, 1989). Because

this issue is surfacing in various courts which are reach-

ing divergent results, however, a discussion of an alter-

native approach that reaches the same result may be

appropriate.

Section 7(0) (2) (A) of the Fair Labor Standards Act

relates to whether public employees should get compen-

38a

satory time or money for overtime work. It provides that

a public agency may provide compensatory time, rather

than pay, either pursuant to a collective bargaining

agreement between the employer and “representatives

of such employees”, or if employees are not covered by

that provision, pursuant to an agreement between the

employer and the employee arrived at before performance

of the work. In the later case, the regular practice in

effect on April 15, 1986 constitutes such an individual

agreement for employees hired before that date. 29

U.S.C.A. § 207 (0) (2) (A).

The critical fact in this case is that the employees

designated a representative, but the employer is prohib-

ited by law from entering into an agreement with that

1 Title 29 U.S.C.A. § 207(c) provides in relevant part:

(1) Employees of a public agency which is a State, a political

subdivision of a State, or an interstate governmental agency

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 agree-

ment, memorandum of understanding, or other agreement be-

tween 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 performance of the work; and

6} Bee

In the case of employees described in clause (A)(ii) hired

before April 15, 1986, the regular practice in effect on April 15,

1986, with respect to compensatery time off for such employees

in lieu of the receipt of overtime compensation, shall constitute

an agreement or understanding under such clause (A) (ii).

Except as provided in the previous sentence, the provision of

compensatory time off to such employees for hours worked after

April 14, 1986, shall be in accordance with this subsection.

4a

representative. The employees take the position that

they have a representative and since there is no agree-

mnt for compensatory time, money for overtime is re-

quired. The employer takes the position that the law

prohibits an agreement with an employee representative,

so that the alternative section applies to make the issue

turn on the agreement with the individual employee.

I.

The problem has had an interesting history. As orig-

inally enacted, the wage and overtime provisions of the

FLSA did not apply at all to employees of state and

local governments. Fair Labor Standards Act of 1938,

Pub. L. 75-718, §3(d), 52 Stat. 1060. In 1966, how-

ever, Congress amended the FLSA to extend minimum

wage and overtime pay coverage to many governmental

employees, including those working at state hospitals.

Fair Labor Standards Amendments of 1966, Pub. L.

89-601, §§ 102(a) & (bi, 80 Stat. 830, 831. Georgia’s

state hospitals, at which the plaintiffs are employed,

then began paying their workers cash for overtime work,

as required by the FLSA. In 1968, the Supreme Court

held that the 1966 amendments were constitutional. See

Maryland v. Wirtz, 392 U.S. 183, 88 S.Ct. 2017, 20

L.Ed.2d 1020 (1968).

In 1974, amendments to the FLSA extended coverage

to virtually all state employees. Fair Labor Standards

Amendments of 1974, Pub. L. 93-259, §§ 6(a) (1) & (6),

88 Stat. 55, 58, 60. Georgia’s state agencies again com-

plied. They continued compliance until in National

Leaque of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465,

49 L.Ed.2d 245 (1976), the Supreme Court overruled

its 1968 Wirtz decision and held that certain provisions

of the FLSA were unconstitutional because they inter-

fered with “traditional governmental functions” at the

state and local level. After Usery, Georgia's state agen-

cies changed their overtime-pay practices and estab-

5a

lished a state-wide policy which, with only limited ex-

ceptions, required awarding compensatory time in lieu

of cash payments for overtime work.

In 1985, the Supreme Court overruled Usery in Garcia

v. San Antonio Metropolitan Transit Authority, 469 U.S.

528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). State

agencies in Georgia and elsewhere again began paying

cash for overtime work as the FLSA required. This had

an immediate and significant impact on many state and

local treasuries. After much investigation and fact-find-

ing, Congress once more amended the FLSA, this time

to afford these governmental employers some relief from

the burden of paying cash overtime compensation to

their covered employees. Fair Labor Standards Amend-

ments of 1985, Pub. L. 99-150, 99 Stat. 787.

These amendments allowed public employers to give

compensatory time in lieu of cash for overtime hours

worked under certain circumstances. See 29 U.S.C.A.

$ 207(0). Pursuant to these provisions, Georgia's state

agencies on March 1, 1986 once more began awarding

their employees compensatory time off for overtime

work.

Il.

The employees designated the Georgia State Employees’

Association (GSEA) as their representative concerning

overtime compensation, notified the State of this, and

demanded that the State either negotiate with the rep-

resentative about overtime compensation, or cease using

compensatory time and begin cash payments for over-

time hours. Asserting that the FLSA permitted its cur-

rent practice and Georgia law prohibited it from nego-

tiating with third parties over state employees’ conditions

of employment, the State refused to negotiate with GSEA

and continued its compensatory-time policy.

The employees then filed this suit under the FLSA.

The district court, relying on 29 C.F.R. § 553.23, de-

termined that GSEA, as the employees’ designated rep-

6a

resentative, was a “representative” under 29 U.S.C.A.

§ 207(0) (2) (A) (i) for purposes of negotiating over

compensatory time, and the State was required either

to negotiate a compensatory-time agreement with GSEA

or begin paying cash for the employees’ overtime hours.

The court enjoined the State’s use, without an appro-

priate agreement, of compensatory time as to the em-

ployees represented by GSEA (subsequently determined

to be all of the plaintiffs) and awarded the employees

compensatory damages, costs, and attorneys’ fees. Du-

lard v. Harris, 695 F.Supp. 565 (N.D.Ga. 1987).

On appeal, the State maintains that 29 U.S.C.A.

§§ 207(0) (2) (A) (i) & (ii), the provisions allowing

agreements on compensatory time, are unambiguous and

require no resort to legislative history to determine

their meaning. Alternatively, the State argues that even

if there is sufficient ambiguity to merit an inquiry into

Congressional intent, the legislative history, as evidenced

by the report of the Senate Committee on Labor and

Human Resources, reveals that the intended meaning to

subclause (i)’s term “representative” is recognized rep-

resentative. The State contends that the employees have

no such recognized representative.

The employees respond that the intended meaning of

the term “representative” in subclass (i) is swiiciently

ambiguous to require an inquiry into legislative history.

They rely primarily on Department of Labor (DOL)

regulation 29 C.F.R. § 553.23 and the legislative history

reflected in the report of the House Committee on Labor

and Human Resources as proof that Congress intended

for mere designative, not formal recognition, of a rep-

resentative to be sufficient. GSEA clearly was the em-

ployees’ designated representative.

ITI.

We are satisfied with the way the Fourth Circuit

dealt with these arguments in Abbott v. City of Vir-

ginia Beach, F.2d at , Stating that the statute

7a

was unclear and looking to the legislative history, fol-

lowing the method of analysis of the district court. Ab-

bott v. City of Virginia Beach, 689 F.Supp. 600 (E.D.

Va. 1988). Equally satisfactory, in our judgment, would

be this analysis: the statute on its face is plain, and

the legislative history does not mandate a contrary

interpretation.

IV.

Generally, if a statute is unambiguous on its face, the

courts will look to legislative history only to see if there

is a “ ‘clearly expressed legislative intent’ contrary to

that language.” Immigration and Naturalization Service

v. Cardoza-Fonseca, 480 U.S. 421, 432 n.12, 107 S.Ct.

1207, 1214 n.12, 94 L.Ed.2d 434 (1987) (citations omit-

ted). If the Senate and House histories conflict, the

history of the body in which the enacted bill originated

is normally more persuasive. Steiner v. Mitchell, 350

U.S. 247, 254, 76 S.Ct. 330, 334-35, 100 L.Ed. 267

(1956).

The plain language of 29 U.S.C.A §$ 207(0) (2) (A) (i)

& (ii) indicates that a State agency may use compen-

satory time only if it does so under subclause (i) pur-

suant to the terms of an agreement or understanding

between the agency and its employees’ representative, or

if the employees are not covered by such an agreement,

which resolves the issue as to whether compensatory time

or cash for overtime is required, the question is resolved

under subclause (ii) pursuant to an agreement or un-

derstanding with each employee It appears clear that

the prerequisite for employees being “covered under sub-

clause (i)” is an agreement or understanding between

the employer and the employees’ representative. Since

the employees here had no agreement or understanding

under subclause (i), they were not “covered” by it and

thus were governed by subclause (ii). Of course, if

there is no agreement with either the representative or

an individual employee, then cash, rather than com-

pensatory time, is required.

8a ‘

Since the plaintiffs here were “employees described

in clause (A) (ii) hired before April 15, 1986” and the

“regular practice in effect on April 15, 1986” was to

award compensatory time in lieu of cash payments, this

regular practice “constitute[d] an agreement or under-

standing under such clause (A) (ii).” 29 U.S.C.A. § 207

(9) (2)(B). Under this previously existing practice, the

State could permissibly use compensatory time to pay

the employees for overtime hours worked, absent a con-

trary agreement with an individual employee.

Having determined 29 U.S.C.A. § 207(0) (2) (A) to

be unambiguous, we would then look to its legislative

history only to determine whether it shows a clearly ex-

pressed intent contrary to this interpretation of the

plain language.

V.

The legislative history reveals no single intent. Both

the Senate and House introduced bills to amend the

FLSA in 1985. S. 1570, 99th Cong., Ist Sess. (1985) ;

H.R. 3530, 99th Cong., Ist Sess. (1985). Generally, the

Senate and House committee reports reflected similar

intent. Both reports noted disagreement in the testi-

mony heard about the costs of governmental agencies’

FLSA compliance with the overtime-pay provisions. The

committee reports concluded that states and _ localities

required to comply with the FLSA would be forced to

assume additional financial responsibilities with in at

least some instances the additional costs being substan-

tial. S. Rep. No. 159, 99th Cong., Ist Sess. 7-8 (1985)

(“S. Rep. No. 159”); H.R. Rep. No. 331, 99th Cong.,

Ist Sess. 17-18 (1985) (“H.R. Rep. No. 331’).

The House committee report expressed an intent ‘“‘to

provide flexibility to state and local government em-

ployers and an element of choice to their employees re-

garding compensation for statutory overtime hours

worked by covered employees.” H.R. Rep. No. 331 at

19. The committee recognized the mutual benefits arising

9a

from and encouraged the continued use of compensatory

time as under past arrangements. /d. at 19-20.

The Senate committee report likewise noted that many

government employers and employees had in the past

voluntarily reached compensatory ‘time arrangements

“reflect [ing] mutually satisfactory solutions that [were]

both fiscally and socially responsible.” S. Rep. No. 159

at 8.

The Senate’s and House’s respective versions of pro-

posed 29 U.S.C.A. § 207(0)’s compensatory-time require-

ments differed in several respects, but contained sim-

ilar provisions governing agreements to allow compensa-

tory time in lieu of cash payments for overtime work.

The joint committee on conference report indicated that

there was initial disagreement and eventual compromise

in several areas: the method for calculating payments

for compensatory time due upon termination of employ-

ment, the treatment to accord substitute employment,

the limit on allowable accrual of compensatory time,

the scope of the anti-discrimination provision, and time

limits on protection under certain provisions. H.R. Rep.

No. 357, 99th Cong., Ist Sess. 7-9 (1985) (“H.R. Rep.

No. 357’’).

The conference committee report mentioned no dis-

agreement or compromise on the language governing

compensatory-time agreements now contained in 29

U.S.C.A. § 267(0) (2) (A). H.R. Rep. No. 357 at 1-9.

There was little to disagree over since the respective

versions of this provision were so similar. Despite this

absence of expressed disagreement and compromise,

there was no stated consensus either. The legislative

_history reveals no clear answer to what effect the pres-

ence or absence of a “representative” (whatever that

term is interpreted to mean) would have on whether em-

ployees are “not covered by” section 207(0) (2) (A) (i).

Thus, there is no clearly expressed legislative intent

contrary to the plain language in the provision indicat-

10a

ing that the presence or absence of an agreement is the

factor determining whether employees are “not covered

by subclause (i).” Although there are unclear and con-

flicting statements in the legislative history, this Court

will not read into the statute a requirement not in-

cluded in its plain language or clearly expressed in its

history.

Even if we were to determine from the legislative

history that Congress intended for the absence of a “rep-

resentative’ (rather than, as we interpret the statutory

language to mean, the absence of an agreement or under-

standing) to be the factor making employees “not covered

by subclause (i),’’ we would still conclude that the legis-

lative history does not support the district court’s ruling.

The relevant provision ultimately contained in the Senate

bill enacted was essentially identical to the language in

both the original House bill and the original Senate bill.

There were no significant differences. To the extent that

the respective histories conflicted, however, the Senate

history is more persuasive since the bill which was en-

acted originated there. Steiner v. Mitchell, 350 U.S. at

254, 76 S.Ct. at 334-35. The district court’s order, how-

ever, did not even mention the Senate legislative history.

See Dillard v. Harris, 695 F. Supp. 565 (N.D.Ga. 1987).

Although the language of their respective bills dealt

similarly with compensatory-time agreements, the Senate

and House committee reports included one potentially

significant difference in what the committees intended.

The Senate report repeatedly referred to the employees’

“recognized representative” as the one with whom the

employer-must reach agreement before using compensa-

tory time in lieu of cash payments under subclause (1).

S. Rep. No. 159 at 10-11. The House report, on the other

hand, stated that the employees have a subclause (i)

“representative” whenever “the employees have selected

a representative, which need not be a formal or recognized

collective bargaining agent as long as it is a representa-

lla

tive designated by the employees.” H.R. Rep. No. 331 at

20 (emphasis added). The House and Senate committee

reports contain no explanation or resolution of this dif-

ference. The legislative history thus does not clearly

answer whether Congress intended that, in a situation

such as is presented here, the plaintiffs’ mere designa-

tion of a representative satisfies subclause (i).

The House committee report tends to support the em-

ployees’ argument that since they have designated a

representative, subclause (i) applies. On the other hand,

the Senate committee report’s use of the term “recognized

representative” tends to support the State’s position that

phrase means a representative with whom public agen-

cies could lawfully negotiate, so that when state law

prohibits such negotiation there can be no recognized

representative. Since Georgia law prohibits state em-

ployers from recognizing third party representatives for

purposes of negotiating with them over employment con-

ditions, the employees lack the type of representative

envisioned in subclause (i), and thus subclause (ii)

applies.

VI.

The employees contend that even if the “recognized

representative” construction is applied to subclause (i),

uncer Georgia law public agencies may lawfully recognize

and negotiate with employee representatives over con-

ditions of employment. The case law, however, does not

support their position.

In International Longshoremen’s Association, AFL-

CIO v. Georgia Ports Authority, 217 Ga. 712, 124 S.E.2d

733, 737, cert. denied, 370 U.S. 922, 82 S.Ct. 1561, 8

L.Ed.2d 503 (1962), the Georgia Supreme Court upheld

an injunction against state employees picketing to force

the Ports Authority to enter into a collective bargaining

contract. The injunction was upheld because the picket-

ing was for an illegal purpose. The court stated that

12a

the Ports Authority was “without authority to enter into

an agreement with any third party fixing the terms

and conditions of the employment of the personnel work-

ing for the authority.” Id.

Later, in Chatham Association of Educators, Teachers

Unit v. Board of Public Education, 231 Ga. 806, 204

S.E.2d 138, 139-40 (1974), the Georgia Supreme Court

refused to enforce a contract reached between a teachers’

association and a local school board because the contract

was void as an illegal attempt by the board to delegate

its authority to control allocation of funds and conditions

of teachers’ employment.

More recent cases, such as Local 732, Amalgamated

Transit Union v. Metropolitan Atlanta Rapid Transit

Authority, 253 Ga. 219, 320 S.E.2d 742, 744 (1984),

note that for Atlanta’s mass transit system employees

there is a statutory exception to the general principle

that Georgia’s governmental agencies have no authority

to bargain with employee representatives over employ-

ment conditions.

Although citing no Georgia case law in their favor, the

employees state that Georgia’s Attorney General has sug-

gested governmental employers have some discretion in

“recognizing” and “bargaining with’ employee unions.

In a 1969 opinion the Attorney General stated:

Inasmuch as I am unaware of any State statute

which would require [state] hospitals to bargain

collectively with hospital employees or their labor

organizations, I conclude that no such legal obliga-

tion exists. This is not to say, of course, that the

hospital employer could not bargain collectively if it

voluntarily chose to do so.

Op. Ga. Att’y Gen., No. 69-262 (unofficial) (1969).

In 1975 the Attorney General’s Office prepared a

detailed position paper titled “Legal Status of Public

13a

Employee Labor Organizations in Georgia.” See Op. Ga.

Att’y Gen., p. 457 (1975). The paper advised that a

public employer’s “recognition” of a representative for

its employees and “collective bargaining” with that rep-

resentative, as those terms are defined in the Labor

Management Relations Act (LMRA) context, are illegal

under Georgia law. Id. at 462-63.

The LMRA does not apply to public employees, the

Attcrney General reasoned, thus in the public employ-

ment context these terms may have meanings different

from their precise LMRA definitions. The position paper

concluded that under Georgia law, although a state em-

ployer may not lawfully enter into a binding collective

bargaining contract with an employees’ representative, it

may, if it so desires, “meet and consult” with the rep-

resentative over wages, hours, and conditions of employ-

ment and reach an understanding, which the employer

could then voluntarily adopt according to its normal

policy-making procedures without improperly delegating

its decision-making authority or obligating itself to bar-

gain similarly in the future. The Attorney General sur-

mised that Georgia courts, if confronted with the ques-

tion, would reach a similar conclusion, as some other

states’ courts have. Id. at 463-65.

If the Attorney General is correct, then Georgia’s

state employees may not obtain a collective bargaining

contract to compel their agency to bargain with their

representatives over compensatory time or other em-

ployment matters. The agency may, however, if it

chooses, meet with the representatives, discuss virtually

any employment matter, either adopt or reject the rep-

resentatives’ suggestions, and ultimately reach its own

informed decision. Such a procedure merely allows em-

ployee representatives to have input into the agency’s

ultimate decision. Having input into an employer’s de-

cision is not the same as reaching an agreement or

understanding. Such a procedure plainly does not author-

14a

ize an “agreement” or “memorandum of understanding”

between the agency and a representative, as required by

29 U.S.C.A. § 207(0) (2) (A) (i).

VII.

Since Georgia law does not permit such an agreement

or understanding, the district court’s reliance on 29

C.F.R. § 553.23 was misplaced. The regulation, like the

House committee report, stated that a 29 U.S.C.A. § 207

(0) (A) (2) (i) “representative need not be a formal or

recognized bargaining agent as long as the representa-

tive is designated by the employees.” 29 C.F.R.

$ 553.23(b). The regulatory history, however, indicates

that, in promulgating the regulation, DOL considered

the effect of state law.

Prior to adopting the proposed regulation, DOL re-

ceived comments from many public employers’ and em-

ployees’ organizations. 52 Fed. Reg. 2012-13 (Jan. 16,

1987). Several governmental organizations expressed

concern over the above quoted language in the regula-

tion and the impact it might have in states whose laws

prohibited public agencies from recognizing and bargain-

ing with employees’ representatives. /d. at 2014. DOL

responded as follows:

The Department recognizes a wide variety of State

law that may be pertinent in this area. It is the De-

partment’s intention that the question of whether

employees have a representative for purposes of

FLSA section 7(o) [29 U.S.C.A. § 207(0)] shall be

determined in accordance with State or local law

and practices.

Id. at 2014-15 (emphasis added).

Under Georgia law, the employees have no _ repre-

sentative able to bargain over compensatory time. Ac-

cordingly, when DOL adopted 29 C.F.R. § 553.23, it

15a

did not intend for the regulation to have the impact of

ignoring state law.

In the Abbott v. City of Virginia Beach opinion, the

Fourth Circuit cited several cases which reached a con-

trary result, including the district court decision in this

case, stating that they differed from Abbott in several

key aspects. F.2d at The Court noted that

in Abbott the public employer, prohibited by state law

from contracting with employee representatives, gave

each employee an absolute choice of whether to accept

compensatory leave in lieu of money.

The court differentiated the district court opinion in

this case with the comment that the employer retained

the sole discretion on whether to provide compensatory

leave or money for overtime. There is nothing in this

case, however, that would prevent an individual em-

ployee from negotiating for and obtaining an agree-

ment that cash would be paid for his or her overtime

work. Section 207(0)(2)(B) does prohibit an_ indi-

vidual agreement, before performance of overtime work,

with an employee hired prior to April 15, 1986, that

the employee should receive cash. The legal issue turns

on whether the pay is governed by a collective agree-

ment or an individual agreement, and not on the pro-

cedures by which the agreement is made. The statute

itseif defines what the individual agreement will be for

the employees hired prior to April 15, 1986, unless a

different agreement is made by the employee and the

employer. For employees hired after April 15, 1986, an

agreement must be reached for the employer to provide

compensatory time. Because of the congressional defer-

ence to the serious fiscal problems of public agencies, it is

not unreasonable for the statute to give the state agencies

the upper hand in this decision. In any event, if the

mere designation of a representative with whom the

agency could not legally make an agreement should be

sufficient to control the method of compensation, it would

have been simple for the statute to plainly so provide.

16a

Conclusion

In summary, we hold that the district court erroneously

applied 29 U.S.C.A. § 207(0) (2) (A) (i) and 29 C.F.R.

§ 553.23. The plaintiff employees were not covered by

subclause (i) of section 207(0) (2) (A), and as a result

were covered by subclause (ii). Under section 207(0)

(2) (B), the practice in effect on April 15, 1986 consti-

tuted an agreement with respect to compensatory time,

absent any contrary agreement between an employee and

the state employer. Under that practice, the States’ use

of compensatory time was proper. We reverse the dis-

trict court’s summary judgment and its order enjoining

the State’s use of compensatory time, and we remand for

further proceedings consistent with this opinion.

REVERSED AND REMANDED.

17a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

C86-834A

ALFREDA DILLARD, JIM DUVAL, IDA LEE, BETTY HOGAN,

ANNIE MILLER, JOYCE CETTO, DoRIS CAIN, and

SAMMIE MCGLOTHA

VS.

JOE FRANK HARRIS, GEORGIA DEPARTMENT OF HUMAN

RESOURCES and GEORGIA DEPARTMENT OF TRANSPOR-

TATION

ORDER

This action is before the court on plaintiffs’ motion for

summary judgment. Defendants oppose the motion.

Plaintiffs brought this action seeking declaratory and

injunctive relief and compensatory damages under the

Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-

219. Plaintiffs allege that defendants violated the FLSA

by adopting a policy of compensatory time off (“comp

time’) in lieu of overtime pay without an agreement

with plaintiffs’ representative, the Georgia State Employ-

ees Association. Defendants assert that they are in com-

pliance with the FLSA. The material facts are not in

dispute.

1. Background

On November 13, 1985, Congress amended the FLSA to

require states and municipalities to provide overtime com-

pensation to their employees for hours worked in excess

18a

of 40 hours in any work week. The amendments, effec-

tive April 15, 1986, established procedures by which state

and local governments could, under certain circumstances,

provide for comp time in lieu of overtime pay.

In February 1986, the Georgia Department of Human

Resources issued a memorandum advising all state facili-

ties under its operation of a new policy on overtime com-

pensation. That policy, effective March 1, 1986, requires

“that overtime compensation be in the form of compen-

satory time rather than salary unless all alternatives

have been found inappropriate and there are funds budg-

eted and approved for the purpose of overtime pay.”

Memorandum from Reuben W. Lasseter, Director, Office

of Personnel Administration, to All Organizational Units,

at 1-2 (February 7, 1986), attached as Exhibit I to

plaintiffs’ motion for summary judgment.

Plaintiffs are employees of three state hospitals

operated by the Georgia Department of Human Re-

sources (“Georgia “DHR”): Georgia Retardation Center

(“GRC”), Central State Hospital (“CSH”), and Grace-

wood State School and Hospital (“GSSH”). Plaintiffs

are non-exempt employees under the FLSA, which means

that the 1985 amendments apply to them. Plaintiffs

all are members of the Georgia State Employees Associa-

tion (“GSEA”), which represents some employees at each

of the three hospitals.

On April 4, 1986, GSEA sent letters to the superin-

tendents of each of the three hospitals, demanding that

pursuant to the 1985 amendments to the FLSA, the

Georgia DHR enter into an agreement covering overtime

compensation for GSEA members. See Exhibits D, E,

and F to plaintiffs’ motion. The letters did not result

in any agreement, or apparently even any negotiations,

between GSEA and the Georgia DHR.

On April 14, 1986, a petition containing the signatures

of many employees at Georgia Retardation Center, in-

cluding plaintiffs Dillard and DuVal, was delivered to

19a

defendants. The petition designated the GRC Organizing

Committee as the employees’ representative for negotia-

tions on several matters, including overtime compensa-

tion. On that same day, petitions signed by many em-

ployees at Central State Hospital, including plaintiffs

Lee, Hogan, and Miller, and by employees at Gracewood

State School and Hospital, including plaintiffs Criswell,

Nicholson, and White, were sent to defendants. The CSH

and GSSH petitions stated that:

(w]e, the undersigned employees, . . . have no agree-

ment on overtime compensation with the State of

Georgia. Current Departmental memos do not re

flect any agreement between us and the department.

We hereby demand time-and-a-half cash payment for

all overtime worked.

The petitions did not lead to any agreement between the

parties on overtime compensation.

2. Discussion

The FLSA provision at issue here, 29 U.S.C. § 207

(0) (1), (2), are as follows:

(0) Compensatory time

(1) Employees of a public agency which is a State,

a political subdivision of a State, or an interstate

governmental agency may receive, in accordance with

this subsection and in lieu of overtime compensa-

tion, compensatory time off at a rate not less than

one and one-half hours for each hour of employ-

ment 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

ete

20a

other agreement between the public agency and rep-

resentatives of such employees; or

(ii) in the case of employees not covered by sub-

clause (i), an agreement or understanding arrived

at between the employer and employee before the per-

formance of the work; and

(B) if the employee has not accrued compensa-

tory time in excess of the limit applicable to the

employee prescribed by paragraph (3).

In the case of employees described in clause (A) (ii)

hired prior to April 15, 1986, the regular practice in

effect on April 15, 1986, with respect to compensa-

tory time off for such employees in lieu of the re-

ceipt of overtime compensation, shall constitute an

agreement or understanding under such clause

(A) (ii). Except as provided in the previous sen-

tence, the provision of compensatory time off to such

employees for hours worked after April 14, 1936,

shall be in accordance with this subsection.

In effect, the above provisions prohibit a state or local

public agency from using comp time in lieu of overtime

pay unless (1) the agency and the employees’ representa-

tive reach an agreement permitting the use of comp

time or (2) for employees not covered by such an agree-

ment, the agency and each employee reach an individual

agreement. Plaintiffs assert that where employees have

designated a representative on the issue of overtime com-

pensation, clause (A)(i) is the only means by which

the public agency can provide comp time in lieu of cash

overtime pay. The agency cannot refuse to negotiate

with the representative and then, pursuant to clause

(A) (ii), reach agreements with the individual employees

who designated a representative to reach an agreement

under clause (A) (i).

Defendants respond with a two-part argument. First,

defendants assert that Georgia law prohibits them from

2la

negotiating with third parties representing public em-

ployees as to the employees’ terms of employment. See

International Longshoremen’s Association v. Georgia

Ports Authority, 217 Ga. 712, 124 S.E.2d 783 (1962),

cert. denied, 370 U.S. 922, 82 S.Ct. 1561 (1972). Thus,

defendants assert that because the Georgia DHR legally

cannot and in fact did not reach an agreement with

GSEA regarding comp time under clause (A) (i), plain-

tiffs fall under clause (A) (ii). Second, defendants con-

tend that under (A) (ii) no individual agreements are

required because (1) plaintiffs were hired prior to April

15, 1986 and (2) the Georgia DHR had a “regular

practice” in effect on April 15, 1986 providing for

comp time. See paragraph following 29 U.S.C. § 207

(o) (2) (B).

In their reply brief, plaintiffs assert that clause

(A) (ii), both by its own terms and as explained in the

regulations, 29 C.F.R. § 553.23, has no application where

there is an employee representative. See Jacksonville

Professional Fire Fighters Association Local 2961 v. City

of Jacksonville, No. 86-58-CIV-4, slip op. at 18-20 (E.D.

N.C. May 28, 1987). Thus, plaintiffs assert, defendants

have two choices: either enter into an agreement with

plaintiffs’ representative (GSEA) or pay cash overtime

to the represented employees.

The argument that plaintiffs make is precisely the

same argument as the fire fighters association made in

Jacksonville Professional Fire Fighters. In that case,

defendant City of Jacksonville refused to negotiate with

plaintiffs’ representative because defendant contended

that any agreement reached would be illegal under North

Carolina law, N.C. Gen. Stat. § 95-98. Plaintiffs re-

sponded that an agreement would not violate state law

because plaintiffs’ representative need not be a recog-

nized, formal collective bargaining agent. See 29 C.F.R.

§ 553.23(b) (1). Alternatively, plaintiffs argued that if

North Carolina law did prohibit the city from entering

22a

into an agreement with public employees, the 1985

amendments preempt inconsistent state law and require

the city to enter into an agreement. Based on the regu-

latory provisions interpreting the 1985 amendments, the

court found it unnecessary to decide whether state law

prevented the city from entering into an agreement and

whether the 1985 amendments preempted inconsistent

state law. Instead, the court held only that an agree-

ment pursuant to 29 U.S.C. § 207(0) (2) (A) (i) is the

only manner in which the city could provide comp time

where the fire fighters designated a-representative. This

court believes that the court in Jacksonville Professional

Fire Fighters reached the correct result.

The regulations provide that where the employees have

selected a representative, an agreement is required be-

tween the employer and the employees’ representative as a

condition for the use of comp time in lieu of overtime

payment in cash. 29 C.F.R. § 553.23(a) (1). “[T]he

representative need not be a formal or recognized bar-

gaining agent as long as the representative is designated

by the employees.” 29 C.F.R. § 553.23(b) (1) (empha-

sis added). Where the employees do not have a recog-

nized or otherwise designated representative, the agree-

ment or understanding concerning comp time must be

between the public agency and the individual employee.

29 C.F.R. §$ 553.23(¢e) (1). The regulations clearly fore-

close defendants’ argument that because defendants can-

not legally enter into an agreement with plaintiffs, the

regular practice in effect on April 15, 1986 (which pro-

vides for comp time) constitutes an implied agreement

between defendants and each individual employee. 29

C.F.R. § 553.23(¢c) (2) provides that the “regular prac-

tice” provision applies only “in the case of employees who

have no representative and were employed prior to April

Ee, SPOR. 4s.

The court recognizes that the regulations interpreting

a statute are not conclusive as to the meaning of the

23a

statute. However, where the meaning of the statute is

ambiguous, the court should give considerable deference

to the agency charged with administering the statute.

See Chemical Manufacturers Association v. Natural Re-

sources Defense Council, - US. ; , 105 S.Ct.

1102, 1103 (1985). The Secretary of Labor, who issued

the above regulations, is in a certain sense charged with

administering the 1985 amendments. The Secretary may

bring an action to enforce the overtime compensation pro-

vision and to collect unpaid overtime compensation owing.

See 29 U.S.C. §216(b), (e). The court therefore con-

cludes that the reasonable regulations adopted by the

Secretary are entitled to deference insofar as they are

not inconsistent with the language of the 1985 amend-

ments.

The court notes that the principal drafters of the 1985

amendments intended the result the court reaches here.

In a letter dated September 26, 1986 to the Department

of Labor from the principal drafters of the 1985 amend-

ment, the drafters state the following:

Section 2 of the 1985 Amendments provides that

state and local governments may use compensatory

time in lieu of cash payment for overtime only after

certain conditions are met. Among those conditions

is the agreement of representatives of the employees

involved where such employees have designated a

representative. (See FLSA Section 7(0) (2) (A) (#7,

as added by Section 2(a) of the 1985 Amendments. )

We were careful in developing the amendment to be

clear that the representative need not be a for-

mally recognized collective bargaining representa-

tive and that recognition by the employer was not

required ....

it is the employees’ designation, and not the em-

ployer’s recognition or attitude toward that repre-

sentative, that is vital. FLSA Section 7(0) (2)

24a

(A) (i) was not specifically drafted to avoid any

requirement of formal recognition. During the con-

sideration of the legislation, specific references were

made to a number of states where NLRA collective

bargaining style recognition does not exist; [sic]

but where large numbers of fire, police, and general

public employees belong to labor organizations. We

intended the FLSA requirement of an agreement on

compensatory time to apply in those situations.

Finally, we understand that some employers or

employer representatives may have suggested that

the final paragraph following the new FLSA Section

7(o)(2)(B) was intended to provide that the Sec-

tion (A(i) requirement of an agreement with the

employee representative is not applicable to situa-

tions where a regular compensatory time practice

was in effect on April 15, 1986. As is clear from the

express language of that paragraph, the rule with

regard to practices in effect on April 15, 1986, ap-

plies only to Section (A) (ii) situations in which

no representative is involved.

Because plaintiffs at Georgia Retardation Center have

designated a representative’ to meet with defendants

regarding overtime compensation, defendants must pay

cash overtime compensation to these plaintiffs unless and

until an agreement with the GRC Organizing Committee

regarding comp time is reached. Plaintiffs at Central

State Hospital and Gracewood State School and Hospital

did not designate a representative in their petitions to

defendants. The court cannot determine whether plain-

tiffs at CSH and GSSH intended GSEA to represent

them, and therefore the court can? t now determine

1 Plaintiffs at GRC, in their petitions to defendants, designated

the GRC Organizing Committee to represent them as to the issue of

overtime compensation.

25a

whether defendants can continue to pay comp time to

these employees.”

Because plaintiffs have not adequately addressed the

scope of relief in their motion for summary judgment,

the court does not decide this issue. Moreover, plaintiffs

have not addressed the issue of whether the similarly

situated employees, who are purported to be included as

plaintiffs in this action, can be deemed to have given

their consent to this action by virtue of signing the pe

titions. The court will direct the parties to file briefs ad-

dressing the issues of (1) who, if anyone, was desig-

nated to represent plaintiff employees at CSH and

GSSH,’* (2) what is the appropriate relief under 29

U.S.C. $$ 216, 217, and (3) which employees are en-

titled to that relief.

Accordingly, plaintiffs’ motion for summary judgment

is GRANTED in part 2s set forth in this order. Plain-

tiffs are DIRECTED to file a brief addressing the issues

set forth in the preceding paragraph within thirty (30)

days of entry of this order. Defendants shall have ten

(10) days from the date plaintiffs effect service of their

brief to file a brief in response.

SO ORDERED, this 30 day of SEPTEMBER, 1987.

/s Richard C. Freeman

RICHARD C. FREEMAN

United States District Judge

* The court does not address whether defendants had a “regular

practice” of using comp time on April 15, 1986. See 29 U.S.C.

§$ 207(0)(2)(A) (ii).

%1f the court finds that plaintiffs at CSH and GSSH did not

designate a representative en the issue of overtime, the court may

be compelled io decide the issue of whether the Georgia DHR had

a “regular practice” of comp time in effect on April 15, 1986.

26a

- APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

1:86-ev-834-RCF

ALFREDA DILLARD, JIM DUVAL, IDA LEE, BETTY HoGAn,

ANNIE MILLER, JACQUELYN PARHAM, Doris CAIN,

MAgE CRISWELL, ERNEST NICHOLSON and DOROTHY

White, for and on Behalf of Themselves and Others

Similarly Situated

VS.

Jor FRANK Harris and Georgia Department of

Human Resources

ORDER

[Filed March 30, 1988]

This action is before the court on defendants’ motion

for reconsideration or, alternatively; to amend the court’s

order to allow defendants to pursue an interlocutory ap-

peal. Also to be decided by the court are certain issues

that the court directed the parties to brief.

1. Background

On September 30, 1987, the court entered an order

holding that under the Fair Labor Standards Act

(FLSA), 29 U.S.C. $$ 201-219, defendants must pay

cash overtime to their employees unless and until de-

fendants and the employees’ designated representa-

tive(s) reach an agreement permitting defendants to pay

compensatory time off ‘comp time) in lieu of cash over-

27a

time. See 29 U.S.C. § 207(0). Because plaintiffs Dillard

and Duvall have designated a representative, the court

ruled that defendants must pay cash overtime to these

plaintiffs until an agreement is reached concerning comp

time. However, because it was unclear whether plain-

tiffs employed at Central State Hospital (CSH) and

Gracewood State School and Hospital (GSSH) designated

a representative, the court could not determine-“whether

defendants can continue to pay comp time to these em-

ployees.” Order of September 30, 1987 at 10. The court

directed the parties “to file briefs addressing the issues

of (1) who, if anyone, was designated to represent plain-

tiff employees at CSH and GSSH, (2) what is the appro-

priate relief under 29 U.S.C. §$ 216, 217, and (3) which

employees are entitled to that relief.” Jd. (footnote

omitted).

2. Motion for Reconsideration

Defendants request the court to reconsider its Septem-

ber 30 order or, alternatively, to amend the order to

permit defendants to pursue an interlocutory appeal and

to stay the proceedings pending the outcome of the ap-

peal. Defendants assert three grounds in support of their

motion to reconsider. First, defendants contend that the

order violates the Tenth Amendment because it forces the

State of Georgia to negotiate with third parties con-

cerning state employees’ terms and conditions of em-

ployment in violation of Georgia law, practices, and pub-

lic policy. Second, defendants assert that the order is con-

trary to the Department of Labor’s regulations govern-

ing agreements between public agencies and third party

representatives of public employees. Defendants point

to the Department’s statement that “whether employees

have a representative for purposes of [section 20710) |

shall be determined in accordance with state or local

law and practices.” See 52 Fed. Reg. 2014, 2015. Fi-

nally, defendants contend that the court should have

28a

given no weight to a post-enactment letter prepared by

the principal drafters of the 1985 amendments to the

FLSA because it is hearsay and not a part of the legis-

lative history.

Plaintiffs assert that the court’s interpretation of the

FLSA does not contravene the Tenth Amendment (1) be-

cause that interpretation does not require defendants to

negotiate with plaintiffs’ representatives and (2) be-

cause the Supreme Court’s decision in Garcia v. San

Antonio Metropolitan Transit Authority, 469 U.S. 528,

105 S.Ct. 1005 (1985), clearly holds that the Tenth

Amendment does not circumscribe Congress’ power under

the Commerce Clause to make the FLSA applicable to

state employees. Plaintiffs further contend that the regu-

lations adopted pursuant to the FLSA are consistent with

the court’s interpretation.

The court rejects defendants’ Tenth Amendment argu-

ment. Under the court’s interpretation, the FLSA does

not require defendants to negotiate with plaintiffs’ rep-

resentatives. Rather, the FLSA requires defendants to

pay plaintiffs overtime at a rate not less than one and

one-half times plaintiffs’ regular rate of pay, see 29

U.S.C. § 207(a), unless defendants exercise their option

of negotiating an agreement with plaintiffs’ representa-

tives concerning comp time in lieu of cash overtime, see

29 U.S.C. § 207(0). Congress clearly may require de-

fendants to pay time and one-half overtime to their em-

ployees without running afoul of the Tenth Amendment.

See Garcia, 469 U.S. 528, 105 S.Ct. 1005. Congress does

not violate the Tenth Amendment by giving defendants

the option of negotiating with plaintiffs’ representatives

to reach an agreement permitting defendants to pay comp

time in lieu of cash overtime.

The court also rejects defendants’ contention that the

September 30 order is contrary to the regulations inter-

preting the FLSA. As plaintiffs point out, defendants’

reference to the Department of Labor’s intention as ex-

29a

pressed in the Federal Register clearly is taken out of

context. The Department’s statement that “whether em-

ployees have a representative for purposes of [section

207(0)] shall be determined in accordance with state or

local law and practices” was made in the context of de-

termining whether employees who have a labor repre-

sentative pursuant to a collective bargaining agreement

could designate a different representative, in violation

of the bargaining agreement, to represent them on the

issue of overtime. Because Georgia has no collective bar-

gaining for state employees, the Department’s interpre-

tation is inapplicable to plaintiffs.

As to defendants’ final argument, the court agrees

with defendants that no weight should be given to the

letter written by the drafters of the 1985 amendments

to FLSA. However, it is clear from the September 30

order that the court in no way relied on the letter in

reaching its conclusion. See Order of September 30,

1987 at 8. Thus, the court finds that this argument does

not require the court to reconsider its order, and, there-

fore, the court will deny defendants’ motion.

In the alternative, defendants request that the court

amend its September 30 order to permit defendants to

proceed with an interlocutory appeal. The court will

deny this motion because the court expects a final judg-

ment to be entered shortly in this action.

3. Issues of Representation and Relief

The parties are in agreement as to most of the issues

concerning appropriate relief under 29 U.S.C. §§ 216,

217.! Defendants concede that plaintiffs are entitled to

declaratory and injunctive relief prohibiting defendants

1 [In addressing the proper scope of relief and the issue of repre-

sentation, defendants do not waive their rights of appeal or argu-

ments concerning the correctness of the court’s September 30, 1987

order.

il

- 30a

from paying comp time in lieu of cash overtime to all em-

ployees who have designated a representative pursuant

to 29 U.S.C. § 207(0) (2) (A) (i) unless and until de-

fendants and the representatives enter into an agree-

ment concerning overtime compensation. Additionally, de-

fendants do not dispute plaintiffs’ entitlement to attor-

ney’s fees and costs, although they reserve the right to

object to the reasonableness of plaintiffs’ request.? Fi-

nally, defendants do not object to paying cash overtime

to plaintiffs Dillard and Duvall for overtime hours they

have worked since April 16, 1986 and for which they

have not received cash overtime and have not used the

comp time earned.

As to plaintiffs who work at CSH and GSSH, defend-

ants contend that these plaintiffs will be entitled to re-

ceive cash overtime only after they designate a repre-

sentative on the issue of overtime. Defendants assert

that these plaintiffs have failed to “designate” a repre-

sentative pursuant to section 207(0) (2) (A) (i) because

“designation” requires that the employee directly inform

his employer of his selection of a third party represent

him. It is not sufficient, defendants contend, for the rep-

resentaiive to inform the employer that he is acting as

the employee’s representative.

Plaintiffs respond that it is enough under section

207(0) for an employee to designate a representative and

have the representative notify the employer that he is

acting on the employee’s behalf. If the employer has any

doubts about whether such designation was made, the

employer can obtain confirmation from the employee. The

burden, plaintiffs assert, is on the employer if he doubts

that a third party is acting as an employee’s representa-

tive.

The court agrees with plaintiffs’ common-sense ap-

proach. Plaintiffs’ representative, the Georgia State Em-

2 Plaintiffs have not yet submitted their fee request.

sla

ployees Association (GSEA), sent letters to defendants

notifying defendants that GSEA was the representative

for many of defendants’ employees on the issue of over-

time compensation. See Exhibits D, E, F to plaintiffs’

motion for summary jucgment. Defendants did not re

quest GSEA to provide a list of members so that de-

fendants could verify the employees’ designation of GSEA

as their representative. Nor did defendants ask GSEA

to have its members notify defendants directly of their

(the employees’) designation of GSEA as their repre-

sentative. It is clearly too late for defendants to argue

now that plaintiffs should have directly notified defend-

ants of their designation. Therefore, the court concludes

that all named plaintiffs are entitled to cash overtime for

overtime hours worked after April 15, 1986 and for

which plaintiffs have not received payment and have not

used comp time earned.

Accordingly, defendants’ motion for reconsideration or,

alternatively, to amend the September 30, 1987 order

is DENIED. The court hereby permanently ENJOINS

defendants from paying plaintiffs comp time in lieu of

cash overtime unless and until defendants have entered

into an agreement with the representative(s) concern-

ing overtime compensation.’ Defendants are DIRECTED

to submit within twenty (20) days of the filing of this

order work records showing the number of hours of over-

time each plaintiff (except Dillard and Duvall) has

worked since April 16, 1986; the number of hours for

which they have received cash payments; the number of

hours of comp time accrued; and the number of hours of

% The practical effect of this injunction is to prohibit defendants

from paying comp time to any state employee who designates a

representative pursuant to 29 U.S.C. § 207(0)(2)(A)(i) unless

defendants and the representative have agreed otherwise. If de-

fendants cortinue to pay comp time to similarly situated employees,

defendants certainly will be liable for liquidated damages (as well

as backpay) because defendants’ refusal to pay cash overtime would

not be in good faith. See 29 U.S.C. § 216(b).

32a

comp time used. Plaintiffs are DIRECTED to submit

their fee request within twenty (20) days of the filing of

this order. Such request should include an affidavit of

counsel detailing the number of hours and precise nature

of the work performed in this litigation and affidavits

concerning a reasonable hourly rate. See Norman v.

Housing Authority of City of Montgomery, No. 87-7763

(llth Cir. Feb. 1, 1988). Defendants will have ten

(10) days to respond to plaintiffs’ fee request.

SO ORDERED, this 30 day of MARCH, 1988.

‘'s/ Richard C. Freeman

RICHARD C, FREEMAN

United States District Judge

33a

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 88-8245, 88-8439

ALFREDA DILLARD, et ai.,

Plaintiffs-A ppellees, .

: versus

Joe FRANK HARRIS, and GEORGIA DEPARTMENT OF

HUMAN RESOURCES,

Defendants-A ppellants.

Appeal from the United States District Court

for the Northern District of Georgia

ON PETITION (S) FOR REHEARING

(April 18, 1990)

BEFORE: RONEY and HILL, Senior Circuit Judges,

and HOWARD”, U.S. District Judge.

PER CURIAM:

The petition(s) for rehearing filed by appellees is

DENIED.

ENTERED FOR THE COURT:

/s/ Paul H. Roney

United States Circuit Judge

* Hon. Alex T. Howard, Jr., U.S. District Judge, for the Southern

District of Alabama.

+ ree eeeeemcsassaacmssmmmmmml

§ 207.

(o) (1)

(2)

34a

APPENDX E

29 U.S.C. § 207(0)(1)-(2)

Maximum hours.

Employees of a public agency which is a State,

a political subdivision of a State, or an inter-

state governmental agency may receive, in ac-

cordance 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.

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 agree-

ment 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 per-

formance of the work; and

(B) if the employee has not accrued compensa-

tory time in excess of the limit applicable

to the employee prescribed by paragraph

(3). —

In the case of employees described in clause (A)

(ii) hired prior to April 15, 1986, the regular

practice in effect on April 15, 1986, with respect

to compensatory time off for such employees in

35a

lieu of the receipt of overtime compensation, shall

constitute an agreement or understanding under

such clause (A) (ii). Except as provided in the

previous sentence, the provision of compensatory

time off to such employees for hours worked after

April 14, 1986, shall be in accordance with this

subsection.

36a ig

APPENDIX F

29 C.F.R. § 553.23

§ 553.23 Agreement or understanding prior to perform-

ance of work.

(a) General. (1) As a condition for use of compensa-

tory time in lieu of overtime payment in cash, section 7

(0) (2)(A) of the Act requires an agreement or under-

standing reached prior to the performarce of work. This

can be accomplished pursuant to a collective bargaining

agreement, a memorandum of understanding or any other

agreement between the public agency and representatives

of the employees. If the employees do not have a repre-

sentative, compensatory time may be used in lieu of cash

overtime only if such an agreement or understanding has

been arrived at between the public agency and the indi-

vidual employee before the performance of work. No

agreement or understanding is required with respect to

employees hired prior to April 15, 1986, who do not have

a representative, if the employer had a regular practice

in effect on April 15, 1986, of granting compensatory time

off in lieu of overtime pay.

(2) Agreements or understandings may provide that

compensatory time off in lieu of overtime payment in

cash may be restricted to certain hours of work only. In

addition, agreements or understandings may provide for

any combination of compensatory time off and overtime

payment in cash ‘e.g., one hour compensatory time credit

plus one-half the employee's regular hourly rate of pay in

cash for each hour of overtime worked) so long as the

premium pay principle of at least “time and one-half” is

maintained. The agreement or understanding may include

other provisions governing the preservation, use, or cash-

ing out of compensatory time so long as these provisions

are consistent with section 7/01 of the Act. To the extent

that any provision of an agreement or understanding is in

37a

violation of section 7(o) of the Act, the provision is su-

perseded by the requirements of section 7(0).

(b) Agreement or understanding between the public

agency and a representative of the employees. (1) Where

employees have a representative, the agreement or under-

standing concerning the use of compensatory time must

be between the representative and the public agency

either through a collective bargaining agreement or

through a memorandum of understanding or other type

of oral or written agreement. In the absence of a collec-

tive bargaining agreement applicable to the employees,

the representative need not be a formal or recognized

bargaining agent as long as the representative is desig-

nated by the employees. Any agreement must be con-

sistent with the provisions of section 7(o) of the Act.

(2) Section 2(b) of the 1985 Amendments provides

that a collective bargaining agreement in effect on April

15, 1986, which permits compensatory time off in lieu

of overtime compensation, will remain in effect until the

expiration date of the collective bargaining agreement

unless otherwise modified. However, the terms and con-

ditions of such agreement under which compensatory time

off is provided after April 14, 1986, must not violate the

requirements of section 7(0) of the Act and these regu-

lations.

(ec) Agreement or understanding between the public

agency and individual employees. (1) Where employees

of a public agency do not have a recognized or otherwise

designated representative, the agreement or understand-

ing concerning compensatory time off must be between

the public agency and the individual employee and must,

be reached prior to the performance of work. This acree-

ment or understanding with individual employees need

not be in writing, but a record of its existence must be

kept. (See $553.50.) An employer need not adopt the

same agreement or understanding with different employ-

ees and need not provide compensatory time to all em-

38a

ployees. The agreement or understanding to provide com-

pensatory time off in lieu of cash overtime compensation

may take the form of an express condition of employ-

ment, provided (i) the employee knowingly and volun-

tarily agrees to it as a condition of employment and

(ii) the employee is informed that the compensatory time

received may be preserved, used or cashed out consistent

with the provisions of section 7(0) of the Act. An agree-

ment or understanding may be evidenced by a notice to

the employee that compensatory time off will be given in

lieu of overtime pay. In such a case, an agreement or

understanding would be presumed to exist for purposes of

section 7(0) with respect to any employee who fails to

express to the employer an unwillingness to accept com-

pensatory time off in lieu of overtime pay. However, the

employee’s decision to accept compensatory time off in

lieu of cash overtime payments must be made freely and

without coercion or pressure.

(2) Section 2(a) of the 1985 Amendments provides

that in the case of employees who have no representative

and were employed prior to April 15, 1986, a public

agency that has had a regular practice of awarding com-

pensatory time off in lieu of overtime pay is deemed to

have reached an agreement or understanding with these

employees as of April 15, 1986. A public agency need not

secure an agreement or understanding with each em-

ployee employed prior to that date. If, however, such a

regular practice does not conform to the provisions of

section 7(0) of the Act, it must be modified to do so with

regard to practices after April 14, 1986. With respect to

employees hired after April 14, 1986, the public employer

who elects to use compensatory time must follow the

guidelines on agreements discussed in paragraph (¢) (1)

of this section.

39a -

APPENDIX G

52 Fed. Reg. 2014-15 (January 16, 1987)

Section 7(0) Compensatory Time and Compensatory

Time Off.

* * * *

Section 553.23 Agreement or understanding prior to

performance of work.

The NLOC commented that language should be added

to paragraph (a) (1) of this section to clarify that no

agreement or understanding on compensatory time is re-

quired with respect to employees hired prior to April 15,

1986, if the public agency had a regular practice of

granting compensatory time in lieu of overtime pay prior

to that date. The Department agrees that clarifying lan-

guage is needed. However, the statute provides that this

exception only applies to employees not covered by “. . .

a collective bargaining agreement (CBA), memorandum

of understanding, or any other agreement between the

public agency and representatives of such employees”.

Both the House and Senate reports also plainly state that

the exception for a “prior practice” in lieu of an agree

ment or understanding was intended to be applicable only

to employees who do not have a representative. (See H.

Rep., p. 20 and Senate Report No. 99-159, p. 11 (herein-

after cited as S. Rep.).) Accordingly, paragraph (a) (1)

of the regulations has been modified to add clarifying

language.

a * * *

Various commenters, particularly representatives of

cities, expressed concern with the statement in § 553.23

(b) (i), “the representative need not be a formal or rec-

ognized bargaining agent as long as the representative is

designated by the employees.”” Two commenters objected

to this provision because they believed that it would re-

quire a collective bargaining obligation between a public

2

40a

employer and its employees, when no such bargaining ob-

ligation currently exists under State or Federal law. They

felt that in those jurisdictions where there is no require-

ment that employers meet and deal with employee repre-

sentatives, employee organizations could attempt to estab-

lish a collective bargaining obligation via these regula-

tions. They were also concerned that this subsection is

not clear about the employer’s obligation to “recognize”

any representative, that conceivably an employer could

find itself dealing with a different representative for each

employee. They believed that § 553.23(b) (i) should op-

erate only where collective bargaining obligations are

provided by State law.

A city government suggested that where employees are

not represented by a collective bargaining agent, the

agreement for compensatory time should be made only

with the public agency’s authorized representative.

Another commenter suggested that, since most cities

and towns have not recognized a union or other employee

association, subsection (b) be revised to clarify that the

agency must only reach agreement with “recognized”’

units.

The State of Missouri expressed concern that where

employee representatives have no authority to bargain

enforceable agreements, the proposal accords greater legal

status to employee representatives than is possible under

State law. They suggest that “recognized representative”

mean an organization designated by the employees under

a State’s comprehensive collective bargaining statute, but

not to include organizations covered by “meet and confer”

statutes.

The Department believes that the proposed rule ac-

curately refiects the statutory requirement that a CBA,

memorandum of understanding or other agreement be

reached between the public agency and the representative

of the employees where the employees have designated a

4la

representative. Where the employees do not have a repre-

sentative, the agreement must be between the employer

and the individual employees. The Department recognizes

that there is a wide variety of State law that may be

pertinent in this area. It is the Department’s intention

that the question of whether employees have a representa-

tive for purposes of FLSA Section 7(c) shall be deter-

mined in accordance with State or local law and practices.

In addition, to clarify the fact that the representative

of the employees need not be formal or recognized col-

lective bargaining agent, the Department has modified

§ 553.23(c) (1), as suggested by the National Education

Association (NEA), to add the words “or otherwise desig-

nated” between the words “recognized” and “representa-

tive” since collective bargaining is not a necessary condi-

tion for establishing an agreement between an employer

and an employee representative.

* * * 2

42a

APPENDIX H

LEGAL STATUS OF PUBLIC EMPLOYEE

LABOR ORGANIZATIONS IN GEORGIA

INTRODUCTION

During the past year the office of the Attorney General

has received an increasing number of requests for advice

in connection with the legal status of public employee

Jabor organizations in Georgia. These requests have come

from both public employees desiring to know the extent

to which they may lawfully beccrne involved in labor

union activities, and from concerned state department

and agency officials who are equally desirous of knowing

what their rights and obligations are with respect to

union activities on the part of the public employees under

their supervision. As we shall soon see, a great many of

the questions which have been raised really relate not so

much to law as they do to agency policy and administra-

tive discretion. It goes without saying that the disposition

of questions of this sort addresses itself ultimately to the

sound discretion of the policy-making officials of the af-

fected state departments or agencies. It is equally true,

on the other hand, that there are legal considerations

which must be taken into account in this policy-making

process. It is for this reason that the office of the Attor-

ney General feels obligate’ to present this review of the

lezal parameters of the matter.

THE HISTORICAL BACKGROUND IN BRIEF

In the early years of this century a number of Dan-

bury, Conecticut’s hatters decided to affiliate with a labor

union as a means of improving their working conditions.

Sometime thereafter, the union-member employees of one

hat manufacturer which refused to recognize or deal

with the union went on strike. In conjunction with the

strike, the union and its members sponsored a boycott of

43a

the manufacturer’s hats. The 1908 response of the Su-

preme Court of the United States to this seemingly

commonplace use of organized labor’s two most powerful

weapons was to declare the union’s action to be an un-

lawful combination and conspiracy in restraint of trade

under the Sherman Antitrust Act. See Loewe v. Lawlor,

208 U.S. 274 (1908); Lawlor v. Loewe, 235 U.S. 522

(1915). This decision was followed almost immediately

by the court’s striking of a Kansas statute which at-

tempted to outlaw the practice of an employer requiring

its employee, as a condition of his employment, not to

~become a member of a labor union (i.e., the so-called

“yellow dog” contract). Coppage v. Kansas, 236 U.S. 1

(1915). The court held that the Kansas statute violated

the “liberty” and “property” rights secured to the em-

ployer by the “due process” clause of the Fourteenth

Amendment. Using languaze quite reminiscent of Ana-

tole France’s reputed quip about “the majestic equality

of the law which forbids both the poor and the rich alike

from sleeping under the bridges,”’ the court said that “It

takes two to make a bargain,” that if the employee didn’t

like this condition, he could always decline employment,

and that the “liberty of contract”? which the court was

protecting applied to both parties equally. In a dissent

which has proved him to be as accurate a prognosticator

of the law here as he has been in other areas, Justice

Holmes criticized this “reasoning” of the majority in

Coppaqe {Justices Day and Hughes also dissented], point-

ing out that there just might be something to be said for

trying “to establish the equality of position between the

parties in which liberty of contract begins.” 236 U.S. at

p. 27 (Emphasis added.)

Needless to say, Justice Holmes’ view has prevailed

and the Danbury Hatters case and Coppage have long

since been laid to rest. Actually congressional reaction

came rather quickly. Sections 6 and 20 of the Clayton

Act (15 U.S.C. $17 and 29 U.S.C. § 52), enacted in late

1914, provided that nothing in the antitrust laws was to

a

44a

be construed to forbid the existence and operation of

labor unions, that labor unions and their members were

not to be construed to be illegal conspiracies in restraint

of trade, and that federal courts were not (with certain

exceptions) to grant injunctions in cases between an em-

ployer and employee growing out of a dispute over the

terms or conditions of employment. When Congress later

considered the courts to be overly restrictive in applying

this statutory exemption of labor from the antitrust

laws ' its response was to tighten the screws further by

the Norris-La Guardia Act of 1932 (29 U.S.C. §§ 101-

110, 113-115). This Act absolutely removed the jurisdic-

tion of any court of the United States to enter an injunc-

tion “in a case involving or growing out of a labor dis-

pute” unless certain specified circumstances existed (e.g.,

unlawful acts threatening injury to property, with police

officers being unable or unwilling to furnish adequate

protection). The Norris-La Guardia Act also rejected

Coppage, both as to its holding and as to its rationale,

by declaring “yellow dog” contracts to be contrary to

public policy and unenforceable in any court of the United

States.2 The Congress recognized the realities of life

pointed to by Anatole France and Justice Holmes (which

the majority of the court in Coppage had rejected in

favor of its highly fictional “equal liberty to contract”

theory) when it declared that public policy of the United

States recognized the fact that:

“. . under prevailing economic conditions, developed

with the aid of governmental authority for owners

of property to organize in the corporate and other

forms of ownership association, the individual un-

organized worker is commonly helpless to exercise

actual liberty of contract and to protect his freedom

1In Bedford Cut Stone Co. v. Journeymen Stone Cutter’s Ass’n,

274 U.S. 37 (1927), for example, the court limited the scope of

Section 20 to disputes between an employer and his own employees.

2 29 U.S.C. § 103.

45a

of labor, and thereby to obtain acceptable terms and

conditions of employment. . . .” 29 U.S.C. § 102.

This recognition of the factual discrepancy between

(not to mention the inevitable consequences of) the real

bargaining positions of the individual employee and his

employer (more often than not a corporation) culminated

three years later with the National Labor Relations Act

of 1935, 29 U.S.C. § 151 et seq., which provided for a

comprehensive regulatory code for labor relations in all

areas affecting interstate and foreign commerce. The

NLRA secured to those employees covered by the Act the

right to organize, the right to bargain collectively through

representatives of their own choosing, and the right to

engage in concerted activities (e.g., strikes and boycotts)

to achieve these and other legitimate union ends (e.g.,

improved wages and other conditions of employment).

See, generally, 29 U.S.C. §§ 151-168; 48 Am. Jur.2d,

Labor and Labor Relations, §9. For an employer to

refuse to bargain collectively with a labor union repre-

senting a majority of its employees (or the majority of

the employees of one of its “bargaining units”) became

an “unfair labor practice” subject to a cease and desist

order of the newly-created National Labor Relations

Board, 29 U.S.C. § 160.8

If anything, the NLRA worked only too well for the

cause of organized labor. Over the years its application

appeared to many to be overly one-sided and not suffi-

ciently protective of the employer against unfair labor

practices by unions. Consequently the Congress amended

the NLRA by passing the Labor-Management Relations

8 The constitutionality of this congressional reversal of the Su-

preme Court’s earlier constitutional interpretations in the Danbury

Hatters case and Coppage was upheld on the theory that it was a

proper exercise of Congress’s power under the commerce clause

to deal with the burden which strikes, boycotts and other labor

disturbances placed upon interstate commerce. See NLRB v. Jones

& Laughlin Steel Co., 301 U.S. 1, 8 (1937).

46a

Act of 1947 (i.e, the Taft-Hartley Act), 61 Stat. 136

et seq. See, eg., 29 U.S.C. §§ 158 (b), 174. As amended

by the Taft-Hartley Act, the NLRA (sometimes referred

to in its amended form as LMRA) continues today to

provide the basic statutory framework for labor orga-

nizations and collective bargaining in the general indus-

trial setting.

Not surprisingly this massive statutory treatment has

been accompanied by and continues to be accompanied

by a large number of judicial decisions. However, it is

not the purpose of this memorandum to review the

minutia of labor relations law with respect to general

industry. We are here concerned with the status of the

law with respect to union organization and activities on

the part of public employees in the State of Georgia.

While the foregoing extremely cursory review of the de

velopment of federal law concerning labor organizations

and relations in the general industrial setting is relevant

to a discussion of labor organizations of public employees

in terms of the general concepts involved (e.g., collective

bargaining, ete.), and as a reflection of underlying phi-

losophy of legislators and courts, it does not precisely

answer the questions we shall deal with in this memo-

randum. Public employment and the necessity of the

state’s performance of essential functions frequently poses

different and additional problems. It is one thing if rec-

reational employees are on strike (whether employed by

a public or private body) and quite another if police or

firemen go out on strike. One might produce but a public

inconvenience which is acceptable (no recreational service

in public or private parks) while another might result

in a public catastrophe (no police or fire protection).

In recognition of the differing values which may be in-

volved when it comes to public employment the Congress

has here left the matter to be dealt with by the various

states (whose operations are directly affected). Both

before and after the 1947 amendment the Congress

-

:

47a

has seen fit to exclude public employees from NLRA-

LMRA coverage. The term “employer,” as defined by

29 U.S.C. § 152, expressly excludes:

“any state or political subdivision thereof.” ‘

It is in this light that we proceed to discuss the extent

to which the various labor relations concepts of NLRA

and LMRA may be applicable to labor organizations of

public employees. In specificity we shall look at:

(1) Whether Public Employees Have Any Right to

Organize or Become Members of a Labor Union.

(2) Union “Recognition.”

(3) Collective Bargaining.

(4) Collective Bargaining Contract.

(5) Strikes.

(6) Picketing.

(7) “Closed Shop.”

(8) “Checkoff” of Union Dues.

THE RIGHT OF PUBLIC EMPLOYEES TO

ORGANIZE OR BECOME MEMBERS OF A

LABOR UNION

It is no longer open to question that public employment

cannot be used as a means of compelling the employee to

waive ov forego constitutionally protected rights. See,

e.g., Pickering v. Board of Education, 391 U.S. 563, 568

(1968); Keyishian v. Board of Regents, 385 U.S. 589,

606 (1967). It is similarly settled that “freedom of

association” is a First Amendment (Ga. Code Ann.

*See also 29 U.S.C. § 142. In I/nternational Longshoremen’s

Ass'n, AFL-CIO v. Georgia Ports Authority, 217 Ga. 712 (1) (1962),

the Supreme Court of Georgia construed a state authority to be

within this “state and political subdivision” exemption and hence

not subject to the Act.

48a

§ 1-801) right applicable to the states by virtue of the

Fourteenth Amendment (Ga. Code Ann. §1-815 to

1-819). N.A.A.C.P. v. Alabama, 357 U.S. 449, 460-463

(1958).

The application of these principles to an attempt to

prohibit public employees from becoming members of

labor organizations was squarely presented to the courts

in Atkins v. City of Charlotte, 296 F. Supp. 1068 (W.D.

N.C. 1969) [three-judge]. Members of the Charlotte Fire

Department filed suit attacking the constitutionality of

North Carolina statutes which (1) prohibited public

employees from being members of a labor union and (2)

prohibited contracts between units of government and

labor organizations concerning public employees. While

the three-judge district court upheld the statutory pro-

hibition of contracts between governmental units and

unions, it flatly held that the attempt to prohibit public

employees from even being members of a union was on

its face an intolerable overbreadth which infringed upon

their constitutionally protected “freedom of association.”

Observing that:

“It is beyond argument that a single individual can-

not negotiate on an equal basis with an employer

who hires hundreds of people. Recognition of this

fact of life is the basis of labor-management rela-

tions in this country.” 296 F. Supp. at p. 1075,

the court concluded:

“.. the firemen of the City of Charlotte are granted

the right of free association by the First and Four-

teenth Amendments to the United States Constitu-

tion; that that right of association includes the right

to form and join a labor union—whether local or

national. ...” 296 F. Supp. at p. 1077.

This rationale has been even more recently applied

right here in Georgia where a three-judge federal district

court for the Northern District of the State, following

49a

Atkins, held that Ga. Code Ann. § 54-909 (Ga. Laws

1953, Nov. Sess., p. 624) (which prohibited police officers

from becoming members of a union) was unconstitutional.

See Melton v. City of Atianta, Georgia, 324 F. Supp. 315

(N.D. Ga. 1971) [three-judge]. In Melton, the court

took great care to point out that the constitutional defect

lay in the overbreadth of the statute (i.e., its extension

far beyond anything necessary to protect any valid state

interests) and that the court was not holding that the

state couid not prohibit strikes by police officers. Ibid. at

pp. 318-320.

The conclusions of Atkins and Melton are in line with

what the courts have held elsewhere (see e.g., American

Federation of State, County & Municipal Employees,

AFL-CIO v. Woodward, 406 F.2d 137, 193 (8th Cir.

1969) ; McLaughlin v. Tilendis, 398 F.2d 287 (7th Cir.

1968)), and it is perhaps also worthy of mention that

the office of the Attorney General of Georgia said the

same thing as early as 1969, to-wit:

“, . . the basie right of all individuals, including

[state] hospital employees, to join labor organiza-

tions is undoubtedly protected by the First Amend-

ment to the United States Constitution.” Opp. Att’y

Gen. 69-262.°

For all of these reasons, the constitutional right of

public employees in Georgia to organize or to become

members of labor unions can no longer be doubted.

UNION RECOGNITION

As used in connection with the Labor Management

Relations Act (LMRA), “union recognition” has a fairly

precise meaning. It refers to the employer’s obligation

under that Act to “recognize” and bargain collectively

with that union which has been freely chosen by a ma-

jority of the employees in an appropriate “bargaining

5 See also Op. Att’y Gen. 69-379.

50a

union’ to represent them.® Proof of majority representa-

tion can be evidenced by various means, such as the un-

ion’s disclosure of signed authorization cards by em-

ployees. If and when a dispute on the matter exists the

issue may be determined by an NLRB sponsored election

followed by the board’s “certification” of the union as

the official representative of the employees (if this is the

result of the election). 29 U.S.C. § 159(¢c); 51 C.J.S.

Labor Relations, $$ 170, 172. “Recognition,” whether by

election and certification or by agreement, is exclusive.

Having “recognized” one union as the representative of

th employees in a bargaining unit, the employer is un-

der a duty not to bargain with anyone else. 29 U.S.C.

€ 159(a): 51 C.J.S. Labor Relations, § 162. In summary,

union “recognition” in the context of LMRA relates to

the question of whether a labor union in fact represents

the majority of employees required to place a collective

bargaining obligation on the employer.

With respect to public employees (which as we have

already seen are excluded from LMRA coverage) the

term is of more questionable significance. As we will

show in more detail in the following section of this memo-

randum, there is no such thing as compu/sory “‘collective

bargaining” with respect to public employees in “Georgia.

This by itself would seem to rule out the general) LMRA

meaning of the term (i.e, its use in connection with the

employer’s legal obligation to bargain t lal

union which represents a majority of the emp oyees

a given bargaining unit). Thus to the extent that it has

any meaning at all in the context of p

“recognition” would seem to relate simply to that sort of

recognition or acknowledgement in the dictionary sense

which a governmental agency may, if if so desires, ac-

6 An appropriate bargaining unit is an employee unit, a craft

unit, a plant unit, or a subdivision thereof, as determined by the

National Labor Relations Board (NLRB). 29 U.S.C. § 159(b). It is

majority representation in this “unit” which controls. 29 U.S.C.

§ 159(a); 51 C.J.S. Labor Relations, § 165.

1

-)

5la

cord to any given factual circumstances, including the

fact that a number of its employees are members of a

particular social, religious or labor organization. It goes

without saying that in the public sector such “recogn-

ition” doesn’t carry the legal obligations it does for pri-

vate employers who are covered by LMRA, and among

other things any sort of “recognition” respecting a labor

union in the public sector would not be required to be

“exclusive” recognition.

COLLECTIVE BARGAINING

Since the LMRA does not apply to public employment,

there is no question as to the fact that a public employer

is not required to bargain collectively with its employees

or their union representatives. The question is, may a

public employer bargain collectively with a labor union

concerning the terms and conditions of employment of its

employees if in its discretion it desires to do so?

At the very start of our consideration of this question,

it must be recognized that one problem, perhaps the prin-

cipal problem, stems from the fact that the term “collec-

tive bargaining” is susceptible of varied usages and def-

initions. In the industrial sense and with reference to

the LMRA it is generally used to describe the negotia-

tions leading to the collectively bargained contract be-

tween the employer and the labor union. See, e.g., 51

C.J.S. Labor Relations, § 148. However, as the Court of

Appeals of Arizona pointed out in Board of Education

v. Scottsdale Education Association, 17 Ariz. App. 504,

498 P.2d 578, 582 (1972), the term has many meanings

to many people, ranging in the school context:

‘

‘... from a teacher making known to the Board his

or her desires concerning placing a blackboard in a

classroom, to discussing and conferring with the

Board as to a teacher’s salary scale, to an agree-

ment setting forth in exacting detail the workings of

the school system.”

52a

The court. concluded that in the sense of meeting and

consulting with union officials concerning the working

conditions of public employees there was no problem. As

the court put it:

“In our opinion, this power to hire teachers, fix

their salaries and to control the operation of the

school district, necessarily carries with it the im-

plied power, authority, if the Board so desires, to

consult and confer with an additional teacher in or-

der for the Board to make a sapient judgment as to

wages and working conditions. In this regard we

see little difference between 1200 teachers individ-

ually making known their desires to the Board con-

cerning their wages and working conditions, and a

representative of those 1200 teachers making known

the same desires. 498 P.2d at p. 582.

The court stressed the fact that the decision of whether

or not to engage in “collective bargaining” was one which

addressed itself to the board, saying:

“We therefore hold that the Board has authority to

enter into ‘collective bargaining’ with a representa-

tive of the teacher-employees when that “collective

bargaining’ is used in the context of meeting and

consulting with. However, the decision of whether

the Board desires to enter into such a ‘collective bar-

gaining’ situation remains for the Board, and actions

to compel or coerce the Board to so bargain collec-

tively against its better judgment are improper.”

498 P.2d at p. 583. 7

Approval of “collective bargaining” in this sense is

also seen in State Board of Regents v. United Packing

House Workers, 175 N.W.2d 110 (Iowa 1970), where

the Supreme Court of Iowa noted that:

““A public employer’s general power to carry out its

assigned functions is sufficiently inclusive to permit

consultation with all persons affected by those func-

58a

tions. . . . This consultation serves the public in-

terest by permitting informed governmental action

without abridging governmental freedom of action.”

175 S.W.2d at pp. 112-113.

The Iowa Supreme Court thereupon held:

“The Board of Regents has the power and authority

to meet with representatives of an employee’s un-

ion to discuss wages, working conditions and griev-

ances if it so desires. It can do so without becoming

obligated to meet with the representatives of any

other group of employees. The agreed terms could

be adopted by the Regents in a proper legislative

manner. Such action does not involve an improper

delegation of legislative powers to private persons

as there is no compulsion to sign an agreement and

the final decision remains in the Board of Regents.”

175 N.W.2d at p. 113. (Emphasis added. )

The reasoning of these cases seems sound, and while

the courts of Georgia do not appear to have passed upon

the question, the office of the Attorney General of Geor-

gia has, in an unofficial opinion, reached the same con-

clusion. In discussing the question of possible collective

bargaining with state hospital employees it was concluded

in Op. Att’y Gen. 69-262 (unofficial) :

“Inasmuch as I am aware of any State statute which

would require [state] hospitals to bargain collectively

with hospital employees or their labor organizations,

I conclude that no such legal obligation exists. This

is not to say, of course, that the hospital employer

could not bargain collectively if it voluntarily chose

to do so.” (Emphasis added.)

It is my opinion that if called upon to pass on the

matter the courts of Georgia would probably uphold the

right to bargain collectively in the sense of meeting and

consulting with union officials about wages. hours and

the conditions of employment of public employees.

54a

COLLECTIVE BARGAINING CONTRACT

Although there is some authority to the contrary, see,

eg., Gary Teachers Union, Local No. 4, American Fed-

eration of Teachers v. School City of Gary, 284 N.E.2d

108 (Ind. App. 1972); Chicago Div. of Ill. Ed. Ass’n v.

Board of Education, 76 Ill. App.2d 456, 222 N.E.2d 243,

251 (1966) ,7 the weight of authority seems to be that in

the absence of legislative authority a governmental body

may not enter into a binding collective bargaining con-

tract with a labor union. See, eg., State Board of Re-

gents v. United Packinghouse Food and Allied Worker’s,

175 N.W.2d 110, 117 (Iowa 1970) ; Fellows v. LaTronica,

151 Colo. 300, 377 P.2d 547, 550 (1962); Anno: Labor

Public Employees, 31 A.L.R.2d 1142, 1170. The most

commonly stated reason for this conclusion is that the

power to determine wages, hours and other conditions of

employment cannot be delegated by the governmental

board or agency in which it has been legislatively vested.

As stated in Board of Education v. Scottsdale Educ.

Ass’n, 17 Ariz. App. 504, 498 P.2d 578, 585-586 (1972):

“the alternate responsibility of controlling and

managing the affairs of the school district rests with

the Board and the Board may not by contract, dilute

that responsibility or surrender the Board’s legal

discretion in how the responsibility is to be exer-

cised. We, therefore, hold that the 1971 agreement

between the Board and SEA was without the power

of the Board to enter into and is therefore void.”

In International Longshoreman’s Ass’n, AFL-CIO v.

Georgia Ports Authority, 217 Ga. 712 (1962), cert. de-

nied, 370 U.S. 977 (1972), the Supreme Court of Geor-

7 While holding that the governmental employers involved could

lawfully enter into binding union contracts, the Illinois and Indiana

courts both stressed the fact that the authority was “permissive,”

and that there was no constitutional or statutory “duty” upon the

public employers to enter into the agreements in question.

55a

gia, in addressing itself to a strike situation involving

the Georgia Ports Authority, said:

“We, therefore, hold that the State Ports Authority

in the operation of the docks and warehouses at its

Savannah terminals was without authority to enter

into an agreement with any third party fixing the

terms and conditions of the employment of personnel

working for the authority.” 217 Ga. at p. 718.

Whatever question may heretofore have existed with

respect to whether this language was in fact a “holding”

or whether it was really only “dicta” (the issue before

the court was the legality of the strike and picketing and

not the authority of the Ports Authority to enter into a

collective bargaining contract) is no longer of any conse-

quence. In Chatham Association of Educators v. Board

of Public Education for the City of Savannah and the

County of Chatham, 231 Ga. 806 (1974), the court

squarely held that a collective bargaining contract be-

tween a school board and a labor union was void, and the

rationale of the holding unquestionably rests on the

ground that it was an illegal attempt by the school board

“to delegate its powers and authority to provide the con-

ditions of employment of its teachers and to determine

the manner in which the public funds for the operation

of the schools shall be allocated.” 231 Ga. at p. 808.

Thus, it is now clear that unless and until the General

Assembly authorizes them to do so, public employers in

Georgia cannot enter into valid collective bargaining con-

tracts with labor unions.*®

STRIKES

Ga. Laws 1962, p. 459 (Ga. Code Ann. § 89-1301),

provides that:

8In Atkins v. City of Charlotte, 296 F. Supp. 1068 (W.D. N.C.

1969) [three-judge], the court rejected a constitutional attack upon

a state statute declaring contracts between governmental units and

labor unions to be contrary to public policy and void.

56a

“No person holding a position by appointment or

employment in the Government of the State of Geor-

gia or any agency, authority, board, commission, or

public institution thereof shall promote, encourage

or participate in any strike.”

The courts have quite generally recognized the right

of states to prohibit strikes by their employees. See, e.g.,

Melton v. City of Atlanta, Georgia, 324 F. Supp. 315, 319

(N.D. Ga. 1971) [three-judge]; Atkins v. City of Char-

lotte, 296 F. Supp. 1068, 1076-77 (W.D. N.C. 1969)

'three-judge] ; Norwalk Teachers’ Ass’n v. Board of Ed-

ucation, 138 Conn. 269, 88 A.2d 482, 484-85 (1951);

Anno: Labor—Public Employees, 31 A.L.R.2d 1142,

1159. Consequently, there would seem to be little doubt

as to the validity of Georgia’s statute.

It must not be overlooked, of course, that by its terms,

Ga. Code Ann. § 89-1301 applies only to state agencies,

authorities, boards and institutions. Yet the prohibition

seems to be well rooted in public policy. Courts in other

jurisdictions have held strikes by public employees

(whether state or local) to be unlawful under common

law even in the absence of statute. See 51A C.J.S. Labor

Relations, § 306. Although I have not found any reported

decision of the Supreme Court or Court of Appeals of

Georgia on the point it would be my opinion that if the

question arose the Georgia courts would more likely than

not hold that the same public policy which has been given

statutory recognition with respect to state employees also

applies to county or municipal employees even in the ab-

sence of statute.

PICKETING

The question of picketing presents unsettled issues.

Ga. Code Ann. § 54-803 makes it unlawful for anyone:

«|. to engage in mass picketing at or near any

place where a labor dispute exists, in such a number

or manner as to obstruct or interfere with the en-

57a

trance to or egress from any place of employment.

... Ga. Laws 1947, p. 620.

Moreover, the Supreme Court of Georgia, along with

the courts of various other jurisdictions, has held that

even “peaceful picketing” may be enjoined if it is con-

ducted for “unlawful purposes.” See /nternational Long-

shoreman’s Ass’n, AFL-CIO v. Georgia Ports Authority,

217 Ga. 712 (1962), cert. denied, 370 U.S. 977 (1962);

Weakly County Municipal Electric System v. Vick, 309

S.W.2d 792, 804 (Tenn. 1958).

On the other hand, Ga. Laws 1962, pp. 459, 460 (Ga.

Code Ann. § 89-1302), expressly provides that the stat-

utes prohibiting strikes by state employees shall not:

“. . . limit or impair the right of any State em-

ployee to express or communicate a complaint or

opinion on any matter related to the conditions of

State employment so long as the same is not de-

signed and does not interfere with the full, faithful,

and proper performance of the duties of employ-

ment.”

The expansion of the federal constitutional protections

of “freedom of speech” and “freedom of association” by

the Supreme Court of the United States during recent

years is, of course, common knowledge. The question of

whether or not, and if so, to what extent, this federal

constitutional guarantee has extended into the area of

“peaceful picketing” is uncertain. Courts in other ju-

risdictions have held that picketing of an “informal’’ na-

ture, such as publicizing the fact of a labor dispute, is

not unlawful so long as the administration and perform-

ance of the public functions or services are not inter-

fered with. See Klein v. Civil Service Commission of

Cedar Rapids, 260 Iowa 1147, 152 N.W.2d 195, 200

(1967); City of West Frankfort v. United Ass’n of

Journeymen, etc., 53 Ill. App.2d 207, 202 N.E.2d 649,

652 (1964). Because of the unsettled issues of law con-

58a

cerning the First Amendment, and because of the ob-

vious involvement of factual circumstances which will

vary in each case, it would seem that with respect to

“peaceful picketing” of an essentially informational na-

ture by public employees, the questions of legality and

illegality will probably have to be resolved on a case-by-

case basis—the principal (but not exclusive) guideline

being whether the picketing in any way interferes with

“the full faithful and proper performance” of the gov-

ernmental function, service or activity involved. Accord,

Ga. Code Ann. § 89-1302.

CLOSED SHOP

Interestingly enough, Georgia’s “right to work” legis-

lation (Ga. Laws 1947, p. 616 et seq.; Ga. Code Ann.

Ch. 54-9), which provides that no individual can be re-

quired to be a member of or to pay dues or any fee to a

labor organization as a condition of his employment, and

which further provides that any provision in a contract

between an employer and a labor organization to the

contrary is against public policy and “absolutely void”

(see Ga. Code Ann. § 54-904), does not by its terms ap-

pear to be applicable to public employees (since the term

“employer” expressly excludes “any state or political sub-

division thereof”). Ga. Code Ann. § 54-901(a).

Yet I think thas this is primarily of academic interest.

If the mere entry into a collective bargaining agreement

concerning public employment in general is an unlawful

delegation by the public employer of its power and re-

sponsibility to determine wages, hours and other condi-

tions of employment (see Jnternational Longshoreman’s

Ass'n, AF L-C10 v. Georgia Ports Authority, 217 Ga. 712

(1962), cert. denied, 370 U.S. 977 (1972); Chatham As-

sociation of Educators v. Board of Public Education for

the City of Savannah and the County of Chatham, 231

Ga. 806 (1974)), a delegation of its even more basic

power and responsibility to determine whom it shall em-

59a

ploy and whom it shall not employ is surely an even more

flagrantly unlawful delegation of the power and respon-

_ sibility which the legislature has placed upon it. While

there seems to be a paucity of legal authority on the

matter this appears to be the conclusion reached by those

courts which have considered the matter. See, e.g.,

Smigel v. Southgate Community School District, 24 Mich.

App. 179, 180 N.W.2d 215 (1970); Los Angeles v. Los

Angeles Bld. & Constr. Trades Council, 94 Cal. App.2d

36, 210 P.2d 305, 310 (1949); Petrucci v. Hogan, 27

N.Y.S.2d 718, 725 (1941).

THE CHECKOFF OF UNION DUES

Article VII, Section I, Paragraph II of the Constitution

of the State of Georgia of 1945 (Ga. Code Ann. § 2-5402

(1)), provides that with certian enumerated exceptions

not here applicable:

“The General Assembly shall not by vote, resolution,

or order grant any donation or gratuity in favor of

any person, corporation or association... .”

While the language of this constitutional provision by

its terms speaks of grants by the General Assembly, it

has long since been settled that it is equally applicable

to subordinate agencies and even political subdivisions of

the state. See, e.g., Grand Lodge of Georgia, Independent

Order of Odd Fellows v. City, 226 Ga. 4, 8 (1970); At-

lanta Chamber of Commerce v. McRae, 174 Ga. 590

(1932). Ops. Att’y Gen. 73-116, 73-120.

I do not think it can be questioned but that deducting

dues, contributions, donations or other payments from the

pay check of a public employee and then transmitting the

sums withheld to some third party would impose a sig-

nificant bookkeeping and administrative burden upon the

state department or agency concerned. Nor do I think

that it can seriously be questioned but that the third

party recipient of the sums withheld (be it labor union

60a

or any other association or organization) would receive a

very valuable service as a concomitance of the state’s as-

sumption of this burden. When the third party recipient

is not in an contractual relationship with the state, it

would seem to follow that what it receives (i.c, the state’s

bookkeeping and administrative support and services) is

a “donation or gratuity” within the meaning of Article

VII, Section I, Paragraph II of the State Constitution.

That the objective of the dues checkoff or other deduction

for a third party may be for a worthy or even charitable

cause would not appear to be of any consequence. As the

Supreme Court of Georgia put it in Wright v. Absalom,

224 Ga. 6, 8 (1968):

“The object of an expenditure may be a very worthy

cause and highly beneficial to the general public, but

this will not suffice where the constitutional authori-

zation for such expenditure is lacking.”

In light of the foregoing it is my opinion that in the

absence at the very least of some clear legislative au-

thorization, it would not be lawful for a state department,

board or agency to deduct dues, contributions, donations

or other payments from a public employee’s pay check for

transmittal to some third party (whether a labor orga-

nization or otherwise) with which the state has no con-

tractual relationship. With specific reference to a check-

off of union dues I believe this conclusion is further

supported by the fact that bills which would have author-

ized the checkoff of union dues of public employees have

been introduced into the General Assembly and that such

bills have not passed. See H.B. 359 (1951); H.B. 1344

(1972). Nor would it seem amiss to point out that as a

matter of policy the state has ordinarily declined to as-

sume this sort of a burden for the benefit of a third party

(i.e, bookkeeping and administrative services) even

where incidental to the judicial process of garnishment.

Cf. Ga. Laws 1945, pp. 438, 440 (Ga. Code Ann.

§$ 46-805); Troup County Board of Commissioners v.

Public Finance Corp., 109 Ga. App. 547 (1964).

6la

CONCLUSION

As we have seen, the current legal status of public

employee labor unions in Georgia involves some certainties

and perhaps an even greater number of uncertainties.

The situation with respect to those legal issues which we

have discussed might best be summarized as follows:

1. Organization and Membership—This would appear

to be one of the certainties. The right of a citizen to

organize or to join a labor union is protected by the First

Amendment to the United States Constitution (Ga. Code

Ann. § 1-801) and it is well settled that a state cannot

require an individual to waive or forego this federally

protected right as a condition of public employment.

2. Union “Recognition”—This is one of the uncertain-

ties. While the term has a rather precise meaning and

triggers various legal obligations in the general indus-

trial context of the Labor Management Relations Act, it

has, so far as we are able to ascertain, no fixed meaning

outside of the purview of that Act (as, for example, with

respect to public employment).

3. Collective Bargaining—This is another uncertainty

since the answer depends on how the term is defined.

If the term is used solely in the limited sense of meeting

with and talking to union officials to obtain their views

or recommendations on the wages, hours or other employ-

ment conditions of public employees, it is unquestionably

within the discretionary power of the affected state agency

to do so if it wants to.

j. Collective Bargaining Contract—The Supreme

Court of Georgia has spoken (see Chatham Association of

Educators v. Board of Public Education for the City of

Savannah and the County of Chatham, 231 Ga. 806

(19741), and there would appear to be no question as to

the fact that public employers in Georgia cannot enter

into valid collective bargaining contracts with labor

unions,

62a

5. Strikes—Strikes by the employees of state depart-

ments and agencies are prohibited by statute in Georgia.

6. Picketing—The question of peaceful picketing by

public employees raises unsettled legal issues which will

probably have to be resolved on a case-by-case basis. It is

possible that peaceful picketing which is purely informa-

tive and does not interfere in any way with the perform-

ance of the public function in question may be protected

by the First Amendment.

7. Closed Shop—Although Georgia’s “right to work”

legislation does not by its express term apply to public

employees, there would seem to be little doubt but that

any attempt to provide for a closed shop arrangement

with respect to public employees would be stricken by the

courts as contrary to public policy.

8. Union Dues Checkoff—In the absence of clear legis-

lative authorization it would not appear to be lawful for

a state department, board or agency to deduct union dues

from an employee’s pay check.

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