Petition for Writ of Certiorari — Athmann v. North Slope Borough

Supreme

Court, U.S.

rit?

E D

94 565 SEP 26 199

No.

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

LYNN ATHMANN, JEFF DEUTSCH,

MICHAEL DONOVAN, ROBERT KROGSENG,

JAMES LOMER, MICHAEL McCARTHY,

SAMUEL DAVID REAL, TIM ROUTEN,

ANDREW TOOYAK, JR., and HANNS WEISS,

Petitioners,

VS.

NORTH SLOPE BOROUGH,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Counsel for Petitioners

Randall G. Simpson

JERMAIN, DUNNAGAN & OWENS, P.C.

3000 A Street, Suite 300

Anchorage, Alaska 99503

(907) 563-8844

Atl ll i nh wit 9 eee = ee —see

l.

i ti es

i

QUESTIONS PRESENTED FOR REVIEW

Whether when an employer’s payroll records and time

sheets are concededly false and inaccurate, the

plaintiff police officer estimates of uncompensated

overtime work were sufficient to shift the burden of

proof under Mt. Clemens.

Whether a _ flextime system which requires

nonconsecutive hours of work that are performed at

unscheduled and indeterminate time periods over 24

hours, 7 days a week to be offset by undetermined

hours of non-activity at some unscheduled and

intermittent time periods in the future is inimicable to

the broadly remedial and humanitarian purposes of the

Fair Labor Standards Act.

li

PARTIES TO THE PROCEEDING

In addition to the parties named in the caption, the

following plaintiffs were parties below: Roy Ruffino,

Marlin "Duke" Circle, Daniel Nelson, Dan Shirey,

William Earwood, Rick Swanson, and Jerald MacFarland.

ne

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........ i

PARTIES TO THE PROCEEDING ..........-.---. il

TABLE OF AUTHORITIES ...........----++: iv

‘e060 3) | l

ST ee eee eee ]

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED .......- 2-2 ceesccees 2

STATEMENT OF THE CASE ........-.----:: 3

ee ee ee ee 3

ee ae ee 3

C. The Benefit to NSB in Contracting for 24-Hour Police

Ee ea ee ee ee 4

D. NSB Adopted A Flextime Policy Which Applied Only

To Village Assignments .........-.-+++-+- 8

E. NSB Concededly Maintained False Time Records of

Officer’s Villiage Time .........-.--++-+-- 9

F. How the Questions for Review Were Raised ... 10

REASONS FOR GRANTING THE WRIT ....... 12

iV

A. The Ninth Circuit’s Interpretation of the Officers’

Burden of Proof Is Squarely In Conflict With the U.S.

Supreme Court’s Decision In Mt. Clemens Given

NSB’s Failure to Maintain Accurate Records. .. 12

B. The Ninth Circuit’s Decision Is Also Squarely In

Conflict With Decisions of Other Circuit Courts of

RE eae UAa ean sc arcane ee 14

C. The Unique "Flextime" System Employed by NSB

Wee CS EE og oo oe oo a ORG Ree ee 19

D. Several Reasons of Importance Require the U.S.

Supreme Court’s Review of NSB’s Novel and Unique

PRE WUD och ce ae uacak aw aea 25

CE a chs a Vode ke be orcas ae ae ee 28

PE IE bia ao eo eae ee aed App. 1

og ere en ear re App. 3

EEE -< 0-5 wb wale 3 xe App. 5

PE OP so nk ake eo aoe ae App. 21

SE © os cee App. 30

Vv

TABLE OF AUTHORITIES

FEDERAL CASES Page

Anderson v. Mt. Clemens Pottery Co.,

py Bie Me 8). | ere 11, 12, 14, 15, 16,

17, 18, 23, 26, 28

Brock v. Seto,

790 F.2d 1446 (Sth Cir. 1986)... 2. 2 2 eee ees 16, 26

Brooklyn Savings Bank v. O'Neal,

SE TE Be i is aa Ss eee eens a3

Castilo v. Givens,

oy 8 je. Le A, .) ere ee 15

DePasquale v. Williams-Bauer Corp.,

E51 Pe Fe Gee Gs FD ost cern ccs ces i8

Donovan v. Williams Oil Companies,

ive ® & <8). Go 3) :) Sere 15

Fegley v. Higgins et. al.,

Pee abe Fo te S| rere 15

Garcia v. San Antonio Metropolitan Transit Authority,

Peek BF). . rr ore ree ee ae es 26

Martin v. Deiriggi, 985 F.2d 129 (4th Cir. 1992) ... 15

Secretary of Labor v. DeSisto,

929 F.2d 789 (ist Cir. 1991) .. 2... cee eee ee ees 15

v1

FEDERAL RULES AND STATUTES

ae es he oe reer eee 16, 17, 22

rR ll er ere ee were re 3

ee as FOU 6 ko 66 6A eee 3, 10, 17, 18, 22

a Se OF OO Cb 6 0 ee ee eee eee 3

ST ks eee a ue BA eee 11

SEs 6 Wak oe Re 2 ee ee eee 1]

Ss ss bw eo k's oe eee eee 11, 17

MISCELLANEOUS

Franklin Roosevelt, Public Papers and Address "The

Constitution Prevails," 1937 Volume, The McMillan Co.,

New York 1949, pp. 210 - 211; quoted in Nordund, A

Brief History of the Fair Labor Standards Act, 39 Labor

Pe: Sree ee 23

OPINIONS BELOW

On June 27, 1992, the United States District Court for

the District of Alaska after jury trial, issued a Judgment

dismissing claims of plaintiff police officers for unpaid

overtime and wages brought against the North Slope

Borough of the State of Alaska. A copy is printed in

Appendix A, pp. 1 - 2. An Amended Judgment and

Order was entered November 18, 1992. A copy is

printed in Appendix B, pp. 3 - 4. The United States

Court of Appeals for the Ninth Circuit affirmed the lower

court’s decision on May 23, 1994. The decision was not

published and is reproduced in Appendix C, pp. 5 - 20.

JURISDICTION

The Judgment of the United States Court of Appeals

for the Ninth Circuit was entered on May 23, 1994. A

Petition for Rehearing to the Ninth Circuit was denied on

June 29, 1994. This Petition for Writ of Certiorari is

filed within ninety days of the denial of the Petition for

Rehearing. Jurisdiction of the United States Supreme

Court is invoked pursuant to 28 U.S.C. § 1254(1) and

U.S. Supreme Court Rule 10.1(a).

2

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Since the statutory provisions involved are lengthy,

the citations alone are set forth below. The pertinent text

is set forth in Appendix D, pp. 21 - 29.

United States Code

Fair Labor Standards Act

29 U.S.C. § 207(a) and (k)

29 U.S.C. § 211(c)

29 U.S.C. § 216(b)

Code of Federal Regulations

29 C.F.R. § 516.2

Federal Rules of Civil Procedure

F.R.C.P. Rule 50(a)

F.R.C.P. Rule 50(b)

F.R.C.P. Rule 59

3

STATEMENT OF THE CASE

A. The Claim.

Seventeen police officers brought this action against

the North Slope Borough ("NSB") asserting violations of

the Fair Labor Standards Act of 1938 ("FLSA").' The

officers demanded unpaid overtime resulting from their

assignment to the seven remote villages of NSB to

provide a 24 hour police presence in those villages. See

Map, App. E. Often the officer was the sole NSB officer

for periods of 3 to 14 months.

Officers prosecuted claims for unpaid overtime under

two alternative theories. See 29 U.S.C. § 207(a), 211(c),

and 216(b). First, each officer estimated hours worked

and unpaid due to an unlawful flextime schedule

employed by NSB. Second, each officer alleged a claim

based upon uncompensated "on call" time. This petition

relates only to the first claim based upon the officer’s

estimate of uncompensated overtime hours for extra hours

of work "stretched" over 24 hour days and 7 days a week

by NSB’s novel and unprecedented "flextime" policy.

B. The Plaintiffs

The police officers came to NSB with varying degrees

of experience. Some officers had as much as 10 years of

law enforcement experience in police departments of

other states and had received commendations for heroism.

Reporter’s Transcript "RT" V 86; RT II 117. Others

were fresh recruits out of college. One officer was a

| Of the original 17 only 10 join in this Petition.

4

young female who had always wanted a career in law

enforcement. RT VII 17. She chose to work for NSB

over a job offer with the Tacoma police department. /d.

at 20. One plaintiff was an Alaska Native, born and

raised in the NSB village of Point Hope. RT II 250.

Another officer came to NSB with 22 years of experience

as an Air Force pilot, attaining the rank of major with

distinguished and decorated service in Vietnam. RT IV

217.

C. The Benefit to NSB in Contracting for 24-Hour

Police Presence.

The populations of NSB villages range from as little

as 100 to as much as 500-600 residents. As the result of

the experience of alcohol-related violence, village

residents became dependent on and demanded a constant

law enforcement presence to preserve the peace. RT V

170. The village residents wanted it and it was the desire

of NSB to provide that service. RT II 113. NSB’s mayor

emphasized provision of 24-hour police service to the

villages as part of his administration. RT VII 87.

? NSB enjoys a strong financial depth due to annual

revenue from taxation based on oil reserves of $250-300

million. Exhibit (""Ex.") 152-55. NSB is a home rule

municipality the size of the State of Montana, which is

located in the far north section of Alaska. See App. E. It

is Alaska’s wealthiest local government with a tax base

including the North Slope oil fields and northern section

of the Trans-Alaska Pipeline assessed at more than $12

billion. The mayor of NSB testified that in the years

1987 through 1990, the budget reserves of the NSB were

in excess of $100,000,000 for each of those calendar

(continued...)

5

When it is understood that these seven villages are

scattered across the entire North Slope (See Map App. E),

police protection provided only by long distance from

Barrow was unsatisfactory. According to the Director of

Public Safety, each officer was assigned to a village to

become the "chief of police" of the village. The officers

were engaged to take care of anything that arose in the

village and "keep the peace."’ RT VI 265, 269.

Even the most quiet NSB village can become

extremely violent with the introduction of alcohol. Each

of the officers testified to personal experiences with the

2(...continued)

fiscal years. RT VII 91; Ex. 220. During those same

budget years, the Department of Public Safety budget for

all operations in Barrow and the villages ranged between

$4,500,000 and $5,500,000. Jd. With such numbers, NSB

could afford the expenditures of monies needed to assign

police personnel to permanent village assignments.

> The deputy director of the NSB Department of

Public Safety also testified that it was the policy of NSB

to provide 24-hour law enforcement service to village

residents of the Borough and that village residents

deserved and expected such service from the Borough.

RT V 182 and 164-A. Despite this goal, each of the

officers often served as the sole law enforcement

representative of NSB in the villages for significant

periods of time. (Officer Krogseng spent 21 two week

payroll periods alone in village assignment) RT IV 234;

Ex. 59, (Officer Tooyak, 31 two week payroll periods

alone). RT III 151-152; Ex. 156.

6

sometimes violent and explosive situations resulting from

alcohol or drug abuse. Officer Lomer recounted the

experience of having shots fired at his house, causing him

to direct his wife, 5 months pregnant, and her cousin,

who was also pregnant, to lie on the floor to stay out of

the line of fire. RT VI 137-139. Officer Swanson

testified to having a .44 magnum pointed at his head and

being told "You’re going to die." RT IV 130-131.

Officer Athmann testified about her experiences entering

buildings where drunk and agitated residents were either

hreatening to commit a crime or had actually shot

themselves or other family members. RT VII 35-36; 50-

51. Officer Real testified to a man arriving at his door at

3:00 to 3:30 a.m., cut in several places and bleeding all

over himself. The man said his brother had hit him in

the head with an axe and had a rifle and was holding

some children hostage in the house at the other end of the

village. RT VI 238-239.

Village residents demanded, and NSB required, that

the officers be available for service of any kind at any

time, day or night, and even on ostensible "regular days

off." Even in the absence of violent crime, requests for

officer services varied widely, from a mother and

daughter fight at a village school RT V 110 to a son

disturbed that his father was going to use up all the good

water in the family water tank. RT VI 136. One officer

was ordered by NSB to take care of the village residents’

tax claim forms with the IRS even though it was his

purported scheduled "day off." RT II 137-138. As one

veteran police officer put it: "There are just an endless

number of things that I certainly was not used to as being

part of police work.". RT VI 221. Officers also had to

interdict and control the influx of alcohol into the

villages, whether the villages were "wet" (open access to

alcohol), "damp" (possession legal but importation illegal)

7

or “dry” (all possession and importation of alcohol

illegal).* RT I 150, 153.

The officers were assigned NSB housing _ that

contained two NSB telephones located in the officer’s

living area and in the bedroom. CR 316-324. Each

officer had CB radios at home, in the NSB vehicle and

carried hand-held radios with ranges of one to two miles.

Id. There was no dispatcher to screen calls or requests

for service made by telephone or radio. Jd. Officers

were approached and requested for service at any time,

day or night.

* Officers also performed the function of jail guard,

even if the only jail available in the village was the

public safety officer’s patrol vehicle. RT II 130. They

had to care for prisoner provisions, including meal

preparation and cleaning the prisoner’s cell and "honey

bucket", the bush Alaska toilet. RT I 139-141; III 227;

VI 106. Officers had to perform mechanical work on all

NSB vehicles, including snow machines and 3-wheelers.

RT VI 217. Officers needed to learn the cultural and

social life of the village. Officers were encouraged to

become part of the community. They participated in

Eskimo festivals and games. RT VI 113-114. As the

native officer put it, the Inupiat translation of public

safety officer is "someone who takes people away." He

saw his role as public safety officer to show the village

residents that "this was not always the case." RT Il 265.

Officers had to be the medical examiner to determine

cause of death, RT VI 219. Officers were required to

respond to barking dogs and control vicious dogs running

loose because of the problem of rabies. RT VI 220.

8

D. NSB Adopted A Flextime Policy Which Applied

Only To Village Assignments.

In 1986 the FLSA became applicable to public

employers. NSB officers were informed by their

supervisors that no overtime would be paid to officers

assigned to a village and they were actively discouraged

from_making such claims for overtime. RT V 93-94; VI

121-124. The assumption was that officers were paid for

40 hours a week in the village and any extra hours could

be traded out by employing "free" hours as flextime on

quiet days to come later in the week. RT V 95.

Under NSB’s flextime policy, only actual response

time of an officer to an official request for service was to

be counted toward the 40 hours per work week.’ Other

than three hours a day for office time, NSB officially set

no scheduled hours of work. Officers were expected to

be available for work any day, and any hour, whether it

was designated as a regular day off or even an official

holiday.

Long hours of work in the middle of the night were

to be offset or "flexed" against "quiet time," the next day

or later in the week. RT XI 62-63; RT V 93. Under the

flextime policy, a 3:00 a.m. call-out and response to a

gun call was traded out for allegedly equivalent "quiet

time" at some undetermined time during some day in the

future. RT II 106-107. At trial, even NSB’s own officer

> After April 1988, and the attempted adoption of 29

U.S.C. § 207(k) partial exemption, village officers were

paid on basis of 75 hours in a two-week payroll period.

Officers were then to keep their work to 37-1/2 hours a

week.

9

witness, Officer Hinken, admitted that determining when

an officer was on duty or off duty under the flextime

schedule was a "vague" and "gray area." RT XI 79.

The NSB director admitted that there was no system

for tracking the hours and minutes of this village flextime

schedule. RT XI 63.° NSB didn’t produce any records

to show when flextime began or ended on day-by-day,

week-by-week or any time period.

Since there was admittedly no mechanism to track

flextime, an officer didn’t know when flextime began or

ended or when overtime was being accrued. RT I 199.

If an officer complained to his sergeant about working

excessive hours, the sergeant could and did dismiss such

claims with the instruction to "flex" the time out later.

RT II 125; X.1 58-59. However, this excuse was

quickly followed with the admonition that the officer

could not leave the village uncovered nor refuse to

respond to a call for service while he was "flexing" his

time. RT IV 135; VI 241. As one of NSB village

supervisors reported in an official memo, the village

officer was "trapped" in the village on uncompensated

standby time. Ex. 43.

E. NSB Concededly Maintained False Time Records

of Officer’s Village Time.

NSB admitted that the daily timesheets of officers

were filled out by a supervising sergeant in Barrow. RT

6 NSB counsel again admitted to the Ninth Circuit

panel at oral argument that there was no NSB system to

track these flextime hours.

10

V 191. NSB admitted that, in virtually all cases, these

time sheets were signed by the officer in blank and later

filled out without officer input. Each timesheet with only

minimal deviation showed 8-hour days for 5 consecutive

days each week without any fluctuations. /d. 200.

NSB’s Deputy Director further conceded that such

timesheets did not accurately reflect the actual time of

officers working in the village. /d. at 206. Finally, he

admitted that the Department knew that the entire system

of recording actual work time for the officers was false

and misleading. Jd. 207.

F. How the Questions for Review Were Raised.

Prior to trial, the officers moved for partial summary

judgment on liability on the following two issues among

others:

(1) that NSB violated its record keeping obligation under

Section 11 of the FLSA, 29 U.S.C. § 211(c); and

(2) that NSB’s "flextime" scheme, which had no start and

no end, was illegal under the FLSA, particularly when

coupled with lack of accurate records of hours worked in

"flexing" time. Clerks Record (CR) 126.

This motion was denied. CR 150.

The officers also filed a motion in limine to preclude

NSB from introducing evidence concerning NSB’s illegal

"flextime" system. CR 110. This motion was also

predicated on NSB’s conceded record keeping violations.

This motion was denied. CR 150. The officers also filed

a motion in limine seeking to preclude NSB’s use of

flextime evidence because it did not constitute proper

11

rebuttal evidence of "accurate estimates" of time worked

under Mt. Clemens. This motion was also denied. CR

198. Finally, at trial, the plaintiffs made an oral objection

to evidence concerning NSB’s "flextime system" because

it was illegal per se under the Fair Labor Standards Act.

RT 1 12 - 15. This motion was denied. /d.

At the close of the trial, the officers again moved for

judgment under Rule 50(a) Federal Rule of Civil

Procedure based upon each officer’s estimate of

additional and uncompensated work time from _ their

recollection and review of police records and diaries.

NSB did not rebut this evidence with evidence of exact

hours worked. Instead, NSB offered only its flextime

system to demonstrate officers should not have had

uncompensated time. RT XIV 37 - 38. The officer's

motion was denied. Jd.

The jury returned a verdict for NSB finding inter alia

that there had been no record keeping violation and no

uncompensated work time of the officers. CR 328. The

officers then filed a motion for JNOV under Rule 50(b).

CR 331. The officers also filed a motion for new trial

under Rule 59 based on the "absolute absence of

evidence" to support the jury finding of no record

keeping violations under the FLSA. Both motions were

denied. CR 345. The Ninth Circuit, in an unpublished

MO], affirmed the jury verdict.

12

REASONS FOR GRANTING THE WRIT

A. The Ninth Circuit’s Interpretation of the

Officers’ Burden of Proof Is Squarely In

Conflict With the U.S. Supreme Court’s

Decision In Mt. Clemens Given NSB’s

Failure to Maintain Accurate Records.

In Anderson v. Mt. Clemens Pottery Co., 328 US.

680 (1946) the U.S. Supreme Court set forth the burden

of proof required in FLSA cases where records are

inadequate or inaccurate. In Mt. Clemens the Court

specifically identified the problem manifested in the case

at bar. How does an employee demonstrate a violation of

the FLSA and uncompensated overtime when the duty

and ability to keep adequate records rests solely with the

employer?

The Court recognized that when an employer, who

has the statutory duty to maintain records, has not done

so, the "solution ... is not to penalize the employee by

denying him any recovery on the ground that he is unable

to prove the precise extent of uncompensated work." Jd.

at 687. In this instance, the Court imposed a significant

burden on the employer. Once the employee has

provided some evidence of performance of work for

which he was improperly compensated and the amount

and extent of that work "as a matter of just and

reasonable inference," then the employee has carried his

burden. The Court further held that:

The burden then shifts to the employer to come

forward with evidence of the precise amount of

work performed or with evidence denying the

reasonableness of the inference to be drawn from

the employee’s evidence. /d. (emphasis added).

13

Id. at 687-88.

The Ninth Circuit in its Memorandum Decision

("Decision") determined that the officers had failed to

satisfy a two step process before the burden shifted to

NSB:

In order to take advantage of this shifting burden

of proof, the employee must demonstrate the

employer kept inadequate work records and that

he has performed work for which he was not

compensated. The jury found against the officers

on both points. (emphasis in the original).

See Decision, Appendix C at 17. This was error.

First, in the case at bar the deputy director of NSB

admitted that accurate payroll records of village officers

were not kept by NSB. Marshall testified as follows:

Q: Isn’t it a fact that village public safety

officers’ payroil time sheets do not accurately

reflect the time they worked in the villages in

question?

A: That is correct.

Q: Isn’t it true that that’s one of the requirements

of the FLSA?

A: Yes sir. Yes, sir, that is correct.

Q: And isn’t it true that the Department of Public

Safety knew that the whole system was false

and misleading?

i

14

A: I think that’s probably fair.

RT V 206 - 207.

Second, since there were no accurate records of their

time, each officer was faced with proving a violation of

the FLSA and his hours of uncompensated work without

payroll records to prove it. As a result each officer

testified to his/her actual hours worked in the evening,

late night and on regularly scheduled days off above and

beyond the normal 8-hour (or 7.5 hour) five day a week

schedule the NSB had arbitrarily assigned to each officer.

The officers reconstructed and _ estimated these

uncompensated hours to the best of each officers’ ability,

assuming that a free hour or quiet half hour during the

normal work day could not be adequately "flexed" to

compensate them for work performed for an hour or half

hour after midnight or for work on an alleged day off or

alleged holiday.

Assuming that the officers were entitled to "estimate"

such hours of work beyond a normal "“unflexed" work

day, then this evidence was sufficient to establish that he

or she had performed work for which he or she was not

compensated. Nonetheless, the Ninth Circuit denied the

vificers the benefit of the Mt. Clemens lower burden of

proof, because it required the officers to prove with

precision their uncompensated hours of work, rather than

estimate them, before the burden would shift to NSB.

B. The Ninth Circuit’s Decision Is Also Squarely

In Conflict With Decisions of Other Circuit

Courts of Appeal.

In addition, several United States Circuit Court of

Appeals have ruled that under Mt Clemens the

15

employees’ initial burden is a minimal one. Secretary of

Labor v. DeSisto, 929 F.2d 789, 792 (ist Cir. 1991).

Holding that the testimony of one employee witness was

insufficient to carry the burden for 244 employees, the

court nonetheless noted that:

Where the employer has failed to keep adequate

employment records, it pays for that failure at trial

by bearing the lion’s share of the burden of proof.

(emphasis added).

Id. at 792.

Similarly the Sixth Circuit held that an employee

carried his burden of proof under Mt. Clemens by his

own testimony and his own estimate of hours of

uncompensated work he performed. In Fegley v. Higgins

et. al., 19 F.3d 1126, 1132 (6th Cir. 1994) the court held

that under Mt. Clemens an employee is entitled to a lesser

burden of proof to demonstrate that the employee has

worked uncompensated hours. Jd. The court stated:

"(wle find that the court [below] placed too heavy of a

burden on the plaintiff." Jd. In Fegley, the trial court

had denied the employee’s claims for overtime because it

could not "extrapolate" from the plaintiff's evidence

including the plaintiff's own testimony of his schedule

and hours as to "whether Fegley [plaintiff] worked more

than 40 hours in any particular week." /d. at 1132. This

"reduced" or "minimal" burden of proof for showing the

extent of uncompensated work when an employer fails.to

keep adequate and accurate records of employee wages

and hours has been generally acknowledged. See Martin

v. Deiriggi, 985 F.2d 129, 132 (4th Cir. 1992). Donovan

v. Williams Oil Companies, 717 F.2d 503, 505-06 (10th

Cir. 1983), Castilo v. Givens, 704 F.2d 181, 194 (Sth Cir.

1983). Interestingly, even other published decisions of

16

the Ninth Circuit recognized that under Mf. Clemens

employees are permitted to use "accurate estimates" to

meet their initial burden of showing a violation of the

FLSA. Brock v. Seto, 790 F.2d 1446, 1448 (9th Cir.

1986).

Significantly, despite the fact that NSB’s payroll

records were "in some cases concededly false," the

district court erroneously refused to grant the officer’s

motion for summary judgment on the record keeping

violations of NSB. CR 150. It is indisputable that NSB

did not "maintain and preserve... the starting time and

length of each employee’s work period," as required by

29 C.F.R. § 516.2(a)(5). Nor did NSB record the

officers’ "[hjours worked each workday." Jd. at (a)(7).

Instead, the court determined to allow the jury "... to

apply the federal wage and hour act to the modern day

equivalents of Wyatt Earp, Bat Masterson (or perhaps

more appropriately Sgt. Preston of the Royal Canadian

Mounties) who also provided police service in rural

areas." CR 274 at 3. As a consequence, NSB was able

to argue at trial that record keeping "really doesn’t matter

a blip." RT XIV 123.

Despite the absence of any evidence to refute the

falseness of the payroll records, the jury by Special

Verdict interrogatory determined that no record keeping

violations by NSB had occurred. By that response, the

jury was next instructed to apply a more stringent burden

of proof on the officers to show uncompensated work.

As a result, the village officers’ estimates of actual

overtime hours worked beyond the 40-hour work week

was no longer sufficient to meet the employees’ burden

of proof that they performed uncompensated work. In

this manner, the federal court has permitted a jury to

nullify the law established by this Court’s decision in Mt.

a

17

Clemens. NSB was rewarded for its record keeping

violations, and instead of NSB facing the lion’s share of

the burden, this burden was placed at the feet of the

police officers. The police officers filed a motion for

new trial under Rule 59 based in part on this "absolute

absence of evidence" to support the jury finding on

record keeping. CR 331.

The Ninth Circuit Court of Appeals countenanced this

contortion of Mt. Clemens on several grounds. First, the

court opined that NSB had produced evidence that the

signing of blank timesheets and falsification of payroll

records procedure was “instituted to insure that the village

officers were paid on time." Decision at App. 17. Since

the villages were remote and there was no regular mail

service, the decision seems to ask, what else could NSB

do? Id.

There is no "good faith" excuse for an employer’s

lack of valid record-keeping practices. The requirement

of record-keeping is absolute. See, 29 U.S.C. § 211(c)

and 29 C.F.R. § 516.2. There is no exception to an

employer’s obligation to maintain accurate payroll records

under the FLSA due to remoteness of the job site or the

logistical difficulties presented by bush Alaska.

Moreover, officers could have been paid on a delayed

rolling two week or even three week basis. In fact, this

process was described at trial by a former Chief of

Montana Highway Patrol for paying rural officers. RT

III 38 - 41. He described how rural officers kept daily

notebooks for review by supervisors and mailed

timesheets to those supervisors for later review. Id.

Then, these rural officers in Montana were paid on a two

week delayed basis. /d.

18

Second, the court also excused these violations

because the officers received their pay stubs and could

have reported any discrepancies. Decision at App. 17.

There is no requirement in a law that employees have a

duty to complain or report deliberate inaccuracies in the

payroll records. DePasquale v. Williams-Bauer Corp.,

151 F.2d 578, 579-80 (2d Cir. 1945) (estoppel defense

does not arise from failure to object at the time of

acceptance of payment). Recordkeeping is_ the

employers’ duty under the FLSA. 29 U.S.C. § 211(c).

Finally, the Ninth Circuit decision implies that record-

keeping violations were rebutted by evidence that NSB

put fax machines in the villages in the Fall of 1989.

Decision at App. 17. Interestingly, this action was taken

only after the instant lawsuit was filed in June, 1989.

After the use of fax machines started, more overtime was

paid to officers - most likely because more accurate and

complete record-keeping was possible. As Officer

Donovan testified at trial: "after July 1989 (date the

lawsuit filed). . . officers in the villages were then

authorized overtime. The practice has carried through to

today." RT VII 139. Despite this ameliorative result of

the lawsuit, NSB benefitted mightily from its false

timekeeping practices.

This case is a transgression of the principles

announced in Mt. Clemens by this Court and the

decisions of the several circuit courts of appeal. This

Court’s supervision is required to uphold the uniformity

of federal law and compliance with Mt Clemens

sanctions for employers who purposefully violate the

record-keeping requirements of the FLSA. This law must

apply to the employer in bush Alaska with the same force

as it applies to police departments in Los Angeles.

19

C. The Unique "Flextime" System Employed

by NSB Violates the FLSA.

The decision of the Ninth Circuit Court of Appeals

also upheld the NSB’s novel flextime procedure on the

grounds that the FLSA and its implementing regulations

do not require work of a set number of hours per day or

"require an employee to serve in consecutive hours each

day." Decision at App. 14. The officers submit that this

raises an important question of federal law which should

be decided by the U.S. Supreme Court.

NSB’s flextime system for its police officers is not

based upon traditional notions of this liberal employment

concept. Normally a flextime work schedule is any full

time schedule where employees do not work a traditional

8 to 5, Monday through Friday work week. The work

schedule is either delayed or advanced at the preference

of employee to accommodate demands such as day care

or education. These flextime systems are usually adopted

at the request of employee for the employee’s benefit.

Conversely, NSB’s flextime system differed in that it

required an officer to trade out actual work time when

things heated up in the village against some undetermined

and unknown "quiet time" of indeterminate length (10

minutes or 10 hours) to occur sometime later in the work

week or pay period. This flextime procedure was

concededly adopted by NSB to meet its goal of paying no

overtime to village officers even though they were

sometimes assigned to villages alone for extended periods

of duty.

Plaintiffs were dispatched to reside in remote villages

and told to "flex" their time in order to avoid accrual of

overtime. RT I 198; Ex. 35, 39, 51. This system

20

applied only to village officers and not to officers

Stationed in Barrow. RT I 199.

NSB formalized the flextime schedule by the "Village

Work Schedule" memorandum of the Director in January

of 1988. Ex. 39. Under this policy, the village office was

to be open for only three hours a day, five days a week.

The officer was directed to "use the remaining 22.5 hours

as flexible time [for] call out, emergencies, and meetings

and other business associated with maintaining a village

post." /d. The officer was instructed to work only the

exact number of hours necessary to respond to village

needs on a 24-hour basis 7 days a week including the

officer’s ostensible two days off.

In practice this was unworkable. For example, the

officers noted that actually putting an inebriated village

resident in detox might involve a short time period.

However extended hours were worked after that just

watching and caring for the prisoner until the effects of

the alcohol wore off. These long hours of work, usually

occurring after midnight, were to be traded off with

supposed "quiet time" in the village in the following

afternoon or perhaps spread over several alleged days of

light duty. Hours of work from 2 a.m. to 5 a.m. are not

equivalent to the same hours from 2 p.m. to 5 p.m. where

the officer was still available for village residents’

demands.

Under NSB’s flextime scheme, an officer could be off

duty intermittently until there was a specific call to duty

by a village resident. It was undisputed that even while

on "quiet time" flexing out prior work hours, each officer

was required to remain available to respond to any village

resident’s request for service on a 24-hour basis.

However, not until the officer received a call, grabbed his

21

gun, and responded to a call for service or wrote an

incident report would NSB consider the officer "on duty"

with time accruing under the flextime system. See RT

XI 58.

At trial, Officer Weiss testified why flextime didn’t

work as a means of limiting the number of hours of

work.

Q: And why didn’t you flex your time?

A: I think maybe initially I tried, but flextime is a

concept that simply didn’t work. So it was pretty

well given up by myself shortly after my

assignment to Anaktuvuk Pass.

Q: And why in your experience didn’t it work?

A: Well, again there was really no accounting for

that. The concept was you would spend a certain

number of hours in the office and then respond to

other calls as they occurred. Very frequently |

found that the number of hours that I was allowed

to stay in the office simply wasn’t enough to

service that community and do the things that |

needed to do. So on the general basis, I wound

up still putting in 6, 7 hours a day at the office

and then responding to all the cali outs as they

occurred. Beyond that, if I did use a flex

procedure for perhaps 12 hours one day and tried

to work only 4 hours the next day, at the end of

that 4 hour block inevitably something would

come up that I would have to respond to. So that

flexed off time really wasn’t free of association

with the job. I still had to respond to anything

that occurred. So there was no real divorce from

22

work during that period. In practice, I just found

it to be totally unworkable.

Q: Was there any attempt by the North Slope

Borough to track flextime?

A: No. There was no mechanism provided to me, no

effort to do that.

Q: Did you know when flextime was to begin and

when it was to end?

A: No. I didn’t know when flextime began or ended

anymore than I knew when I got into a situation

of overtime.

RT I 198 - 199.

Officers argued and made repeated applications to the

court that this flextime policy was illegal under the

FLSA. The grounds for ruling it was illegal were

several. First, it is undisputed that NSB never made any

attempt to track or record flextime hours. There was no

attempt by NSB to record the admittedly fluctuating daily

work hours of officers in a village assignment all in

violation of 29 U.S.C. § 211(c) and 29 C.F.R. § 516.2.

NSB, instead, argued that it expected officers to "use

common sense" and exercise discretion to track their "flex

hours" properly. Officers submit that under the FLSA,

this was an improper shifting of the statutory duty to

keep accurate records. Moreover, as it turned out, the

penalty for the failure to keep these required records of

work was ultimately placed on to the shoulders of

employees.

23

Second, NSB argued that officers understood that they

were supposed to "track their flextime" and any failure

that might have caused overtime was the officer’s

problem. This permitted NSB to use flextime as a sword.

Thus, flextime is illegal. It was used as a means to

obtain employee waiver of the statutory right to overtime

required by the FLSA. As this Court ruled in Brooklyn

Savings Bank v. O’Neal, 324 U.S. 697, 707 (1945), "No

one can doubt that to allow waiver of statutory wages by

agreement would nullify the purposes of the Act."

Further, NSB attacked officer estimates of uncompensated

work by accusing the officers of disobeying the direct

order to flex their work time. RT II 28. Since NSB

chose not to have time records of flextime, the flextime

procedure and its use as a defense created an

unreasonable and illegal burden of proof that was

improper under Mt. Clemens.

Third, the NSB flextime procedure permitted NSB to

"stretch" hours of one employee over 24 hours, 7 days a

week. Such "stretching" of employee’s work is

inimicable to the founding principles of the FLSA.’ The

NSB knew and the Department of Public Safety superiors

conceded that to provide 24-hour police presence in the

"In 1937, President Roosevelt argued that "[a] self-

supporting and self-respecting democracy can plead no

justification for the existence of child labor, no economic

reason for chiseling workers’ wages or stretching

workers’ hours." (emphasis added), Franklin Roosevelt,

Public Papers and Address "The Constitution Prevails,"

1937 Volume, The McMillan Co., New York 1949, pp.

210 - 211; quoted in Nordund, A Brief History of the Fair

Labor Standards Act, 39 Labor Law J. 715, 719 (1988).

24

villages with traditional 8-hour shifts as was used in

Barrow, it would require at least four or five officers.

RT VIII 9 - 10. NSB was fully aware that the 24-hour,

7 days a week readiness to respond created excessive

strain on the lives of officers assigned to the village.

Officers could not be expected to provide such services

indefinitely. RT V 183 - 185. NSB also had to know

that a single officer assignment to a remote village would

absolutely result in overtime. It was recognized and

generally acknowledged by NSB superiors that such 24-

hour engagement for an extended period of time was

responsible for "officer burnout," particularly when the

officer was assigned to the village alone. RT V 185 -

186.

The remedial purpose of the FLSA is clear. Congress

enacted the overtime provisions of the FLSA to place a

heavy financial burden on employers to _ ensure

employment of additional employees. NSB’s flextime

procedure frustrated this policy of the FLSA. Instead of

hiring additional officers to provide 24-hour coverage, the

NSB determined to "stretch" a single police officer’s time

to cover a village for 24 hours and avoid payment of

overtime.

The flextime example described in the Decision of the

Ninth Circuit Court of Appeals consisting of uneven work

days of three hours one day, ten hours the next, etc. was

not NSB’s flextime procedure for its officers. See

Decision at App. 14. A twelve, or fourteen hour day was

to be made up in increments of hours or minutes or

seconds of "quiet time” where an officer was standing

ready at any hour of the day or night for any village

resident’s request for service. Flextime occurring over 24

hours from early morning hours to late evening hours to

25

hours after midnight is not flextime -- it is working 24

hours a day.

Officers submit that such a system to frustrate the

ameliorative purpose of the FLSA is inimicable to that

federal law. NSB should have been precluded from using

flextime to stretch hours of work as a defense to the

demand of overtime hours made by each officer for work

performed beyond the normal eight hour day and on

regular days off.

D. Several Reasons of Importance Require the

U.S. Supreme Court’s Review of NSB’s Novel

and Unique Flextime Procedure

First, NSB will continue to man village assignments

with one or two village officers to cover those villages on

a 24-hour basis, seven days a week. Although fax

machines are in place in each village, by the decision of

the Ninth Circuit Court of Appeals, NSB has been told

that its flextime policy is perfectly acceptable under the

FLSA. As a result, officers of NSB continue to be

required to "stretch" their time so that NSB can meet its

24-hour police presence and law enforcement needs in

remote villages with minimal staffing expense. Violation

of federal law is alive and well on the North Slope of

Alaska.

Second, the "burnout" and turnover of officers in

village assignments continues unabated. As long as

flextime continues as an acceptable means of avoiding

accrual of overtime, NSB will not commit any resources

to ensure officers are properly compensated for remote

village assignment. It is interesting to note that of the 17

officers who filed this lawsuit, filed in June, 1989, only

two remain employed with the NSB Department of Public

26

Safety. These remaining two are also employed in

Barrow, not in the villages.

Third, this Court’s supervision is required to address

the question of what is a permissible employer defense to

"estimates" of uncompensated work time under M..

Clemens. Once an employer, as NSB, has violated the

record keeping requirements of the FLSA, what evidence,

if any, other than "evidence of the precise amount of

work performed" may an Employer present to "negative

the reasonableness" of employee estimates. Anderson v.

Mt. Clemens Pottery, 328 U.S. at 687. NSB’s illegal

flextime system and any evidence which does not

"specifically and expressly" rebut the inferences from

employee evidence should not be permitted. Jd. at 693.

See_also, reference to extent of rebuttal discussed in

Brock v. Seto, 790 F.2d at 1448.

Fourth, there existed and more likely than not

continues to exist a blatant disregard for the requirements

of federal law in the North Slope Borough of Alaska.

Deputy Director Marshall was assigned by the Director of

the Department to address NSB’s compliance with the

FLSA after this Court’s decision in Garcia v. San

Antonio Metropolitan Transit Authority, 469 U.S. 528

(1985). He had studied the application and requirements

of FLSA to police departments at the Southern Police

Institute in Kentucky, a training center for law

enforcement personnel. RT V 186. In that study he

concluded as follows:

Faced with this fact, it would probably be best if

agencies affected by the Act [FLSA] adopt the

tactics of the legendary unnamed, perennially

victimized woman who said, *When_rape_is

27

inevitable, one might as well relax and enjoy it.’

While this writer, in common with most

administrators finds little to enjoy in applying the

Fair Labor Standards Act to the operation of his

[Police] agency, knowledge of the major

provisions of the Act can at least allow him a

certain measure of relaxation in dealing with it.

(emphasis added).

RT V 189 - 190.

A major, significant and wealthy public employer in

the State of Alaska found "little to enjoy" in complying

with federal law. In response, NSB superiors embarked

on a concerted and well thought out system to avoid the

financial impact of that federal law. In December of

1987, Deputy Marshall prepared a memo to the Chief

Administrative Officer of NSB. In this memo he

identified the "Statement of the Problem" as:

Fairly rigid requirements as to work weeks and

work hours within the work week that are set

forth by the North Slope Borough Personnel Rules

have created the potential for viable demands for

Overtime payment far in excess of the budgetary

allocation for such payment. . . It is the author’s

purpose in this document to present for

administrative consideration the available options

under the FLSA which would allow for increased

flexibility of scheduling and reduction of overtime

accrual and to suggest methods of implementing

those options which would be consistent with the

NSB Personnel Rules. (emphasis added)

Ex. 51. It was immediately after this memo by Deputy

Marshall and its statement of the problem, that Director

28

Martin distributed his memorandum on the village officer

work schedule of January 1988. Ex. 39. As noted, he

required three hours a day for office work in the village

five days a week, but he then instructed that the

remaining 22.5 hours for seven days was to be flexed by

the officers. Flextime was the method employed to avoid

the "problem" with the FLSA identified by Marshall.

Flextime to stretch officer hours provided the "increased

flexibility of scheduling for reduction of overtime

accrual." Ex. 51.

Finally, this Court should not permit NSB to nullify

or deaden the impact of the Act by forcing its officers to

juggle intermittent minutes of "down time" with

unrecorded work time at 6 a.m., midnight or 3 a.m. in

order to avoid its obligation to pay under the FLSA. This

Court’s supervision is required to state that the FLSA

does apply to rural police forces, the modern day

equivalent of Wyatt Earp, whether in Alaska or Montana.

This Court should review this novel procedure of the

NSB in flexing officer time over 24 hours and prevent

this abuse of the law.

CONCLUSION

Each officer estimated his or her actual hours of

uncompensated overtime assuming that flextime did not

offset those hours worked during alleged quiet times in

the normal 8 - 5 day. Petitioning officers estimated their

hours of uncompensated overtime at trial with a specific

total number of hours. Under Mt. Clemens, this proof

was sufficient to meet each officer’s minimal burden to

shift to NSB the duty to come forward with evidence of

precise hours worked. NSB did not even attempt such

proof but instead attacked the unreasonableness of the

29

officers failure to live and work by its flextime

procedures. This Court should reverse and remand for an

order entering judgment for each of these officers at the

amount of each one’s estimated overtime hours.

DATED this 26th day of September, 1994.

RANDALL G. SIMPSON

JERMAIN, DUNNAGAN & OWENS, P.C.

Attorney for Petitioners

App. |

APPENDIX "A"

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

AT ANCHORAGE

No. A89-319 Civil

ROY RUFFINO, ROBERT KROGSENG,

RICK SWANSON, JEFF DEUTSCH,

MARLIN "DUKE" CIRCLE, MICHAEL

DONOVAN, ANDREW TOOYAK, JR.,

DANIEL NELSON, MICHAEL

McCARTHY, HANNS WEISS, TIM

ROUTEN, LYNN ATHMANN, RONALD

W. EARWOOD, JAMES LOMER,

JERRY McFARLAND, SAMUEL DAVID

REAL and DAN SHIREY, on behalf

of themselves and all other

employees of the North Slope

Borough similarly situated,

Plaintiffs,

VS.

NORTH SLOPE BOROUGH,

Defendant.

JUDGMENT IN A CIVIL CASE

& Jury Verdict. This action came before the Court for

a trial by jury. The issues have been tried and the jury

has rendered its verdict.

App. 2

O Decision by Court. This action came to trial or

hearing before the Court. The issues have been tried or

heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

THAT the plaintiff take nothing, that the action be

dismissed on the merits, and that the defendant NORTH

SLOPE BOROUGH recover of the plaintiffs ROY

RUFFINO, ROBERT KROSGENG, RICK SWANSON,

JEFF DEUTSCH, MARLIN' CIRCLE, MICHAEL

DONOVAN, ANDREW TOOYAK, DANIEL NELSON,

MICHAEL MCCARTHY, HANNS’ WEISS, DAN

SHIREY, JAMES LOMER, RONALD EARWOOD,

SAMUEL DAVID REAL, LYNN ATHMANN, §and

JERRY MCFARLAND the costs of action.

Total costs taxed by the clerk in the amount of

$19,809.92 in favor of defendant and against plaintiffs.

APPROVED: Costs retaxed disallowing total of

$1,900.24 by order of magistrate Judge John D. Roberts.

/s/

U.S. DISTRICT COURT JUDGE

DATE: June 27, 1993 /s/ Phyllis Rhodes

Clerk

/s/ Inez Lee

(By) Deputy Clerk

App. 3

APPENDIX "B"

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

AT ANCHORAGE

No. A89-319 Civil

ROY RUFFINO, ROBERT KROGSENG,

RICK SWANSON, JEFF DEUTSCH,

MARLIN "DUKE" CIRCLE, MICHAEL

DONOVAN, ANDREW TOOYAK, JR.,

DANIEL NELSON, MICHAEL

McCARTHY, HANNS WEISS, TIM

ROUTEN, LYNN ATHMANN, RONALD

W. EARWOOD, JAMES LOMER,

JERRY McFARLAND, SAMUEL DAVID

REAL and DAN SHIREY, on behalf

of themselves and all other

employees of the North Slope

Borough similarly situated,

Plaintiffs,

VS.

NORTH SLOPE BOROUGH,

Defendant.

AMENDED JUDGMENT IN A CIVIL CASE

IT IS ORDERED AND ADJUDGED:

App. 4

That the plaintiffs take nothing, that the action be

dismissed on the merits, and that the defendant North

Slope Borough recover of the plaintiffs Roy Ruffino,

Robert Krogseng, Rick Swanson, Jeff Deutsch, Marlin

"Duke" Circle, Michael Donovan, Andrew Tooyak, Jr.,

Daniel Nelson, Michael McCarthy, Hanns Weiss, Dan

Shirey, James Lomer, Ronald W. Earwood, Samuel David

Real, Lynne Athmann, Jerry McFarland and Tim Routen

the costs of action.

Total costs taxed by the clerk in the amount of

$19,809.92 in favor of defendant and against plaintiffs.

Costs retaxed disallowing total of $1,900.24 by order

of Magistrate Judge John D. Roberts.

Total costs after retaxation recoverable by defendant

North Slope Borough from plaintiffs is $17,909.68.

APPROVED this 18th day of November, 1992.

/s/

JUDGE OF THE U.S. DISTRICT COURT

App. 5

APPENDIX "C"

Not For Publication

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 92-36866

D.C. No. CV-89-00319-JKS

ROY RUFFINO; RICK SWANSON; JEFF DEUTSCH;

MARLIN "DUKE" CIRCLE; MICHAEL DONOVAN;

ANDREW JR. TOOYAK; HANNS SWISS;

LYNNE ATHMANN; RONALD W. EARWOOD;

JAMES LOMER; JERRY McFARLAND;

SAMUEL DAVID REAL; TIM ROUTEN;

ROBERT KROGSENG and DAN SHIREY, on behalf

of themselves and all other employees of

the North Slope Borough similarly situated,

Plaintiffs-Appellants,

VS.

NORTH SLOPE BOROUGH,

Defendant-Appellee.

MEMORANDUM

Appeal from the United States District Court

for the District of Alaska

James K. Singleton, District Judge, Presiding

Argued and Submitted April 7, 1994

Seattle, Washington

App. 6

Before: TANG, BOOCHEVER, and REINHARDT,

Circuit Judges

Appellants are former or current law enforcement

officers employed in remote Alaskan villages by the

North Slope Borough Department of Public Safety ("the

Borough"). The officers brought an action pursuant to

the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§

201-219 (1988), for overtime compensation. The district

court denied various motions brought by the officers, and

rendered judgment based on the jury’s verdict for the

Borough. The officers appeal.

We have jurisdiction under 28 U.S.C. § 1291 and

affirm.

DISCUSSION

I. The compensability of on-call time

The FLSA _ requires overtime compensation for

employees who work beyond 40 hours per week. See 29

U.S.C. § 207(a)(1). However, public agencies are exempt

from paying overtime to fire protection and law

enforcement personnel for a certain period beyond 40

hours per week according to the formula set forth at 29

U.S.C. § 207(k). Applying this formula, the Borough

need not pay overtime to the officers until they serve over

85 hours per two-week pay period.

We addressed the applicability of overtime provisions

to "on-call" time in Owens v. Local No. 169, 971 F.2d

347 (9th Cir. 1992). To determine whether on-call time

is spent "predominantly for the employer’s benefit" and

thus is compensable under the FLSA, Armour & Co. v.

App. 7

Wantock, 323 U.S. 126, 133 (1944), we look to "(1) the

degree to which the employee is free to engage in

personal activities; and (2) the agreements between the

parties." Owens, 971 F.2d at 350.

Courts have considered a number of factors in

determining whether an employee plaintiff had use

of on-call time for personal purposes: (1) whether

there was an on-premises living requirement; (2)

whether there were excessive geographical

restrictions on employees movements; (3) whether

the frequency of calls was unduly restrictive; (4)

whether a fixed time limit for response was

unduly restrictive; (5) whether the on-call

employee could easily trade on-call

responsibilities; (6) whether use of a pager could

ease restrictions; and (7) whether the employee

had actually engaged in personal activities during

call-in time. Such a list is illustrative, not

exhaustive. No one factor is dispositive.

Id. at 351 (footnotes and citations omitted).

Some of the factors favor the officers’ claim {or

overtime on-call compensation while alone in the village.

The Borough required 24-hour coverage of the villages.

If an officer was covering a village alone with no partner,

the officer was required to stay within the area (usually

within 1-2 miles of the village) to ensure radio contact

and quick response time. There were thus rather rigorous

geographica! restrictions on the officers’ movements.

The officers also presented evidence that they were

subject to interruptions due to the villagers’ direct access

to the officers’ homes. However, the record on appeal

App. 8

does not establish that these interruptions occurred after

the required hours per week had been served. Cf. Renfro

v. City of Emporia, Kan., 948 F.2d 1529, 1538 (10th Cir.

1991) (fire fighters required to answer an average of four

to five calls per day during off-duty time were entitled to

overtime compensation), cert. dismissed, 112 S. Ct. 1310

(1992).

Finally, officers serving alone in the village could not

trade on-call responsibilities. In Owens, the on-call

policy was held not to create compensable waiting time in

part because as part of an on-call pool, the employees

could decline to respond to after-hours calls. 971 F.2d at

357. Cf. Brock v. El Paso Natural Gas Co., 826 F.2d

. 369, 373-74 (Sth Cir. 1987) (on-call policy not unduly

restrictive in part because employees could trade on-call

responsibilities).

Other factors cut against the officers’ claim for

compensable on-call time. The officers serving with a

partner were not subject to such excessive geographical

restrictions, the frequency of after-hours calls was

reduced, and the partners could trade on-call status.

Most significantly, even the officers serving without a

partner were able to engage in a substantial number of

personal activities while on-call. The officers hunted and

fished, exercised, engaged in various hobbies, socialized,

took educational courses, and even worked second and

third jobs. The evidence indicated that there were often

long periods with little official enforcement activity in

which the officers were free to pursue their personal

interests.

App. 9

While no one factor is dispositive, Owens, 971 F.2d

at 351, the Department of Labor regulations focus on the

employee’s ability to engage in other activities while on-

call. 29 C.F.R.' § 785.15 states that on-call time is

compensable where "the employee is unable to use the

time effectively for his own purposes." This court has

found the nature of the personal activities in which an

employee participated while on-call "an essential factor in

the Supreme Court’s "primarily for the benefit of the

employer’ test." Owens, 971 F.2d at 356.

Moreover, courts have consistently held on-call time

noncompensable where employees were able to

participate in a substantial number of non-work activities

while on-call. See Gilligan v. City of Emporia, Kan., 986

F.2d 410, 413 (10th Cir. 1993) (on-call restrictions on

personal activities of water and sewer department

employees "not so prohibitive that it can be said that their

on-call time is spent predominantly for the employer’s

benefit"); Owens, 971 F.2d at 353 (plaintiffs able to

attend out-of-town sporting events, golf, bowl, attend

church, take out-of-town trips on the weekends, engage in

other employment, coach children’s teams, attend school,

participate in athletics, dine at restaurants, watch movies,

fish and hunt, etc.); Bright v. Houston Northwest Medical

Center Survivor, Inc., 934 F.2d 671, 673 (Sth Cir. 1991)

(en banc) (plaintiff engaged in other activities away from

work, such as shopping and occasionally going to

restaurants), cert. denied, 112 S. Ct. 882 (1992); Boehm

v. Kansas City Power and Light Co., 868 F.2d 1182,

1185 (10th Cir. 1989) (free to use off-duty time as

wished); Halferty v. Pulse Drug Co., 864 F.2d 1185, 1189

(Sth Cir. 1989) (on-call time not compensable where

ambulance dispatcher who worked at home could

entertain guests, sleep, watch television, do laundry, and

App. 10

babysit); Norton _v. Worthen Van Serv., Inc., 839 F.2d

653, 566 (10th Cir. 1988) (compensation denied where

on-call time spent at friends’ homes, church, laundromats,

restaurants, and _ recreational facilities, demonstrating

ability to engage in personal activities even where

required to respond within fifteen to twenty minutes).

But see Cross _v. Arkansas Forestry Comm’n, 938 F.2d

912, 916-17 (8th Cir. 1991) (on-call time compensable

where the plaintiffs’ activities were restricted by having

to monitor radio transmissions).

While the officers serving alone did not receive

respite from the 24-hour on-call status, they were

nonetheless able to engage in a substantial number of

personal activities. As in Owens, the broad scope of

activities in which the officers were involved

"demonstrates that each [officer] had the option to engage

in personal activities of his [or her] choice while on call."

Owens, 971 F.2d at 353.

Moreover, "[w]hether time is spent predominately for

the employer’s benefit [is] dependent on all the

circumstances of the case," Armour & Co., 323 U.S. at

133, and whether "such time falls within or without the

Act is a question of fact to be resolved by appropriate

findings of the trial court." Skidmore v. Swift & Co.,

323 U.S. 134, 136 (1944). The jury found that none of

the officers had compensable on-call time. This finding

is supported by substantial evidence in the record.

App. 11

The district court properly denied the motions for

directed verdict, JNOV, and new trial’ 4A fortiori, the

motion for partial summary judgment was _ properly

denied due to the existence of genuine issues of material

fact regarding the restrictiveness of the officers’ on-call

status.”

'The denial of a motion for directed verdict under Fed. R. Civ. P.

50(a) and a motion for judgment notwithstanding the verdict under

Fed. R. Civ. P. 50(b) are reviewed de novo. Erickson v. Pierce

County, 960 F.2d 801, 804 (9th Cir.), cert. denied, 113 S. Ct. 815

(1992) (standard for reviewing JNOV); /n re: Hawaii Federal

Asbestos Cases, 960 F.2d 806, 816 (9th Cir. 1992) (motions

reviewed under same standard). A directed verdict is proper if the

evidence permits only one reasonable conclusion as to the verdict, /n

re: Hawaii, 960 F.2d at 816, and a jury verdict is affirmed upon

motion for JNOV if there is substantial evidence supporting the

verdict. Landes Construction Co. v. Royal Bank of Canada, 833

F.2d 1365, 1370-71 (9th Cir. 1987). "Substantial evidence is such

relevant evidence as reasonable minds might accept as adequate to

support a conclusion even if it is possible to draw two inconsistent

conclusions from the evidence." /d. at 1371.

The denial of a motion for new trial under Fed. R. Civ. P. 59 is

reviewed for an abuse of discretion. Landes, 833 F.2d at 1372. A

new trial will not be granted unless the verdict is against the clear

weight of the evidence. /d.

The denial of a motion for summary judgment is reviewed de

novo. Federal Deposit Ins. Corp. v. O'Melveny & Meyers, 969 F.2d

744, 747 (9th Cir. 1992), cert. granted, 114 S. Ct. 543 (1993). This

court must determine whether, viewing the evidence in the light most

favorable to the nonmoving party, there are any genuine issues of

material fact and whether the district court correctly applied the

relevant substantive law. /d.

App. 12

Il. The "flextime" system

Under the "flextime" system, officers were required to

set-off extra hours worked in one day against "down

time" during another day. The former Director of the

Department of Public Safety, Larry Packer, testified that

the Borough was concerned with the overall hours the

officers worked during a two-week pay period (75 hours),

although the officers’ time cards reflected 7.5 hours of

work per day.

The Borough personnel policies specify that each

officer is required to work 37.5 hours per week,’ the

scheduling of the hours is left to the discretion of the

officer, each officer shall have two days off per week at

his or her discretion (subject to prior approval), and that

the schedules "should be flexed as the particular needs of

each village dictate[].". Overtime is paid for hours

worked over 85 in any two-week pay period, and for over

12 hours worked during any 24 hour period.

The officers argue that due to the intermittent hours

worked, the flextime system allowed the Borough to

circumvent paying overtime to the officers. But, as

explained below, the flextime system, itself, did not

prevent the payment of overtime. To a considerable

extent, the officers’ real complaint is with the record-

keeping system: the officers could not claim that the

flextime system was used to circumvent paying overtime

if they agreed that an accurate record of hours worked

*Prior to July, 1987, the officers were required to work 40 hours

per week.

el

App. 13

per day had been kept. The claims relating to the

Borough’s record-keeping are addressed in the next

section.

The officers also claim that there was "no known or

consistent beginning or end [to the work period]: so that

no one "would know how many hours had been worked

in any given day, week or month or when an overtime

hour was reached." [Opening brief at 19.] However,

there was indeed a defined two-week pay period. That an

officer did not know how many hours had been worked

in a given period of time is, again, an allegation regarding

the failure of the record-keeping system.

The next complaint about the flextime system is that

it is in reality a "compensatory time-off" policy, which

the officers contend is illegal because the Borough’s

flextime system does not conform to 29 U.S.C. §

207(0).* The officers imply that extra hours worked

during a pay period were required to be "flexed"outside

of that pay period at some future time (thus avoiding the

Borough’s responsibility to pay overtime for that pay

period). However, the officers point to nothing in the

record that proves that the flextime system was

*§ 207(0) provides, in part:

Employees of a public 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.

App. 14

implemented in this way.’ Uneven work days

throughout a pay period does not create a compensatory

payment system. Only when time off is given in lieu of

Overtime is a compensatory time system in place.

Finally, the officers briefly contend that the flextime

system "allows an employer an indirect method of

asserting impermissible waiver, estoppel, and good faith

defenses." [Opening brief at 24 (footnotes omitted).]

The officers fail to explain this argument. We "will not

ordinarily consider matters on appeal that are not

specifically and distinctly raised and argued in

appeliant’s opening brief." International Union of

Bricklayers & Allied Craftsmen Local Union No. 20 v.

Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985)

(emphasis added).

The officers do not point to provisions of the FLSA

or its implementing regulations which require an

employee to work a set number of hours per day, or

which require an employee to serve in consecutive hours

each day. The FLSA prevents an employer from

*The testimony cited for this assertion does not support the

claim that hours were "flexed" against a future pay period. [RT II

125 (Routen) (when he told his supervisors that he had worked more

than eight hours that day, he was told "Take the next day off."); RT

V 23 - 30 (Krogseng) (discussed situation where he had exceeded 75

hours in two-week period and had overtime approved for subsequent

time; he agreed that he was never told that he had to work more than

75 hours without overtime pay); RT VI 240 - 42 (Real) (when

worked long hours for two days, told to "flex it out" and take an

extra day off); RT X 58 - 59 (Packer) (Testified that officers would

get overtime if they had run out of their time, but that if they hadn’t

exceeded their assigned number of hours, they would take care of

calls “out of their flexible time".]

App. 15

requiring an employee to work more than a certain

number of hours per week without paying overtime.

There is nothing in the FLSA that would prevent the

Borough from requiring the officers to work uneven work

days (such as three hours one day, ten hours the next,

etc.), as long as the time worked over the two-week

period does not exceed 85 hours without payment of

overtime. Accordingly, the officers have failed to

demonstrate that they are entitled to judgment as a matter

of law that the flextime policy violates the FLSA.

Furthermore, the jury found that none of the officers

performed additional work time for which they had not

been paid, thus rejecting the officers’ claims that they

worked over the maximum number of hours per two-

week pay period due to the operation of the flextime

system. The motions for partial summary judgment,

directed verdict, JNOV, and new trial, all of which raised

these arguments, were properly denied.

III. The record-keeping system

The FLSA requires employers to keep accurate

records of employee hours worked. See 29 U.S.C. §

211(c) ("Every employer . . . shall make, keep, and

preserve such records of the persons employed by him

and of the wages, hours, and other conditions and

practices of employment maintained by him. . . ."); 29

C.F.R. § 516.2(a) ("Every employer shall maintain and

preserve payroll or other records containing the following

information: (7) Hours worked each workday and total

hours worked each workweek."); 29 C.F.R. § 516.6(a)

("Each employer required to maintain records under this

part shall preserve ... (1)... all basic time and earning

cards or sheet on which are entered the daily starting and

App. 16

stopping time of individual employees . . . or the amounts

of work accomplished by individual employees on a

daily, weekly, or pay period basis.").

The officers contend that the Borough failed to keep

accurate records and therefore should have had the

burden of proof to disprove the officers’ estimate of

overtime worked. In Anderson v. Mt. Clemens Pottery

Co., 328 U.S. 680, 686-688 (1946), the Supreme Court

held that where the employer has failed to keep accurate

and adequate records of hours worked and the employee

proves he has not been compensated for work done, the

burden of proof shifts to the employer to rebut the

estimate of hours worked by the employee.

An employee . . . has the burden of proving that he

performed work for which he was not properly

compensated. .. .

When the employer has kept proper and accurate

records, the employee may easily discharge his

burden by securing the production of those records.

But_ where the employer’s records are inaccurate or

inadequate and the employee cannot offer convincing

substitutes, a more difficult problem arises. The

solution, however, is not to penalize the employee by

denying him any recovery on the ground that he is

unable to prove and precise extent of uncompensated

work. Such a result would place a premium on an

employer's failure to keep proper records in

conformity with his statutory duty; it would allow the

employer to keep the benefits of an employee’s labors

without paying due compensation as contemplated by

the [FLSA]. In such a situation we hold that the

employee has carried out his burden if he proves that

App. 17

he has in fact performed work for which he was

improperly compensated and if he produces sufficient

evidence to show the amount and extent of that work

as_a matter of just and reasonable inference. The

burden then shifts to the employer to come forward

with evidence of the precise amount of work

performed or with evidence to negative the

reasonableness of the inference to be drawn from the

employee’s evidence. If the employer fails to

produce such evidence, the court may then award

damages to the employee, even though the result be

only approximate.

Id. at 687 (emphasis added). See also McLaughlin v. Ho

Fat Seto, 850 F.2d 586, 589 (9th Cir. 1988), cert. denied,

488 U.S. 1040 (1989).

In order to take advantage of this shifting burden of

proof, the employee must demonstrate that the employer

kept inadequate work records and that he has performed

work for which he was not compensated. The jury found

against the officers on both points: the Borough had not

failed to keep accurate and adequate payroll records and

one of the officers performed additional work for which

they had not been paid.

The officers introduced evidence that until 1989,

blank signed timesheets of the village officers were filled

out by the supervising officers in Barrow to reflect 7.5

hours of work per day. Deputy Director of Public Safety

John Marshall agreed that the Borough’s timesheets did

not accurately reflect hours worked each day by the

village officers.

App. 18

As previously noted, the officers worked in isolated

villages, often with no regular means of transportation to

the Borough headquarters at Barrow and without regular

mail service. The Borough presented evidence that this

procedure was instituted to ensure that the village officers

were paid on time. The officers received pay stubs which

reflected hours worked and could' report § any

discrepancies, and were in phone contact with their

supervisors about hours worked. The Borough also

introduced evidence that by the fall of 1989, the villages

acquired fax machines and the officers filled out and

faxed certified timesheet to Barrow. The Borough

introduced timesheets, overtime forms, records of

overtime payments and paychecks which reflected hours

reported by plaintiffs. In addition, the Borough presented

evidence that the plaintiffs failed to report any unpaid

overtime hours worked to their supervisors.

We conclude that the motion for partial summary

judgment on the accuracy of the records was properly

denied. Moreover, the verdict was not against the clear

weight of the evidence, and the motion for new trial was

properly denied as well.

IV. The § 207(k) plan

The officers argue that the Borough’s § 207(k) plan

violates the FLSA "because of [the Borough’s] illegal

*flextime’ system and because of the undisputed failure to

keep accurate records of hours worked." [Opening brief

at 34.] As previously discussed, the flextime system did

not violate FLSA, and there is evidence supporting the

jury’s verdict that the Borough kept accurate records.

App. 19

The district court’s denial of the officers’ motions for

directed verdict, JNOV, and new trial, all of which

argued that the § 207(k) was "invalid," are affirmed.

V. The jury instructions

During trial, the officers objected to jury instructions

C-47 and C-48, which provided that an employer "who

knows or should have known that an employee is or was

working overtime is obligated to pay overtime," and that

the employee is required to prove that the employer

"permitted, allowed or consented to [overtime] work

performed." [ER-CR 325a.] The officers objected to the

burden of proof requiring them to show that overtime was

"permitted, allowed, or consented" because accurate

records of hours worked were not kept.

The officers agreed to almost identical instructions

and submitted them jointly to the court. [ER-CR 294, p.

10-11.° The officers requested this instruction and may

not now object to its use. See 999 v. CIT. Corp., 776

F.2d 866, 870 (9th Cir. 1985) (district court properly

denied request to withdraw previously requested

instruction).

*The proposed instructions stated: "The words ‘suffer’ or

‘permit’ mean work performed within the knowledge of the

employer. .. . Where an employer has no knowledge that an

employee is engaging in overtime work and that employee fails to

notify the employer . . . the employer’s failure to pay for the

overtime hours is not a violation of the FLSA"; "A part of the

plaintiffs’ burden of proof is to show that the defendant ’suffered’ or

allowed the plaintiffs to work uncompensated overtime.”

App. 20

VI. The motions in limine

Finally, the officers argue that the district court

erroneously denied its various motions in limine urging

the court to preclude the Borough from introducing its

payroll records and evidence of its flextime system and

policy requiring pre-authorization of overtime. The

officers argue that Anderson v. Mt. Clemens Pottery Co.,

328 U.S. 680, limits an employer’s "rebuttal evidence" to

accurate estimates of time worked, and that the Borough’s

records were not accurate.

As previously discussed, the Anderson burden-shifting

does not come into play until the employee demonstrates

that the employer’s records are inaccurate or inadequate

and that the employee has not been properly compensated

for work done. /d. at 686 - 688. The jury found that the

Borough did not fail to keep accurate records and that the

plaintiffs did not work uncompensated hours.

There being no other argument that the motions in

limine were improperly denied, the district court did not

abuse its discretion in doing so.’

AFFIRMED.

"The denial of a motion in limine is not reversible absent clear

abuse of discretion. Jaurequi v. City of Glendale, 852 F.2d 1128,

1132 (9th Cir. 1988).

App. 21

APPENDIX "D"

Fair Labor Standards Act

29 USC § 207. Maximum hours

(a) Employees engaged in interstate commerce;

additional applicability to employees pursuant to

subsequent amendatory provisions. (1) Except as

otherwise provided in this section, no employer shall

employ any of his employees who in any workweek

is engaged in commerce or in the production of goods

for commerce, or is employed in an _ enterprise

engaged in commerce or in the production of goods

for commerce, for a workweek longer than forty

hours unless such employee receives compensation

for his employment in excess of the hours above

specified at a rate not less than one and one-half

times the regular rate at which he is employed.

(2) No employer shall employ any of his employees

who in any workweek is engaged in commerce or in

the production of goods for commerce, or is

employed in an enterprise engaged in commerce or in

the production of goods for commerce, and who in

such workweek is brought within the purview of this

subsection by the amendments made to this Act [29

USCS §§ 201 et seq., generally; for full classification,

consult USCS Tables volumes] by the Fair Labor

Standards Amendments of 1966--

(A) for a workweek longer than forty-four hours

during the first year from the effective date of the

Fair -Labor Standards Amendments of 1966

[Feb. 1, 1967],

(B) for a workweek longer than forty-two hours

during the second year from such date, or

(k)

App. 22

(C) for a workweek longer than forty hours after

the expiration of the second year from such date,

unless such employee receives compensation for his

employment in excess of the hours above specified at

a rate not less than one and one-half times the regular

rate at which he is employed.

* * *

Employment by public agency engaged in fire

protection or law enforcement activities. No

public agency shall be deemed to have violated

subsection (a) with respect to the employment of

any employee in fire protection activities or any

employee in law enforcement activities (including

security personnel in correctional institutions) if--

(1) in a work period of 28 consecutive days the

employee receives for tours of duty which in the

aggregate exceed the lesser of (A) 216 hours, or

(B) the average number of hours (as determined

by the Secretary pursuant to section 6(c)(3) of the

Fair Labor Standards Amendments of 1974) [29

USCS § 213 note] in tours of duty of employees

engaged in such activities in work periods of 28

consecutive days in calendar year 1975; or

(2) in the case of such an employee to whom a

work period of at least 7 but less than 28 days

applies, in his work period the employee receives

for tours of duty which in the aggregate exceed a

number of hours which bears the same ratio to the

number of consecutive days in his work period as

216 hours (or if lower, the number of hours

referred to in clause (B) of paragraph (1)) bears to

28 days, compensation at a rate not less than one

App. 23

and one-half times the regular rate at which he is

employed.

29 U.S.C. § 211(c)

Records. Every employer subject to any provision of

this Act [29 USCS §§ 201 et seq., generally; for full

classification, consult USCS Tables volumes] or of

any order issued under this Act [29 USCS §§ 201 et

seq., generally; for full classification, consult USCS

Tables volumes] shall make, keep, and preserve such

records of the persons employed by him and of the

wages, hours, and other conditions and practices of

employment maintained by him, and shall preserve

such records for such periods of time, and shall make

such reports therefrom to the Administrator

[Secretary] as he shall prescribe by regulation or order

as necessary or appropriate for the enforcement of the

provisions of this Act [29 USCS §§ 201 et seq.,

generally; for full classification, consult USCS Tables

volumes] or the regulations or orders thereunder. The

employer of an employee who performs substitute

work described in section 7(p)(3) [29 USCS §

207(p)(3)] may not be required under this subsection

to keep a record of the hours of the substitute work.

Code of Federal Regulations

29 CFR § 516.2.

Employees subject to minimum wage or minimum

wage and overtime provisions pursuant to section 6

or sections 6 and 7(a) of the Act.

App. 24

(a) [tems required. Every employer shall maintain and

preserve payroll or other records containing the

following information and data with respect to each

employee to whom section 6 or both sections 6 and

7(a) of the Act apply:

(1) Name in full, as used for Social Security

recordkeeping purposes, and on the same record,

the employee’s identifying symbol or number if

such is used in place of name on any time, work,

or payroll records,

(2) Home address, including zip code,

(3) Date of birth, if under 19,

(4) Sex and occupation in which employed (sex

may be indicated by use of the prefixes Mr., Mrs.,

Miss, or Ms.) (Employee’s sex identification is

related to the equal pay provisions of the Act

which are administered by the Equal Employment

Opportunity Commission. Other equal pay

recordkeeping requirements are contained in 29

CFR part 1620.)

(5) Time of day and day of week on which the

employee’s workweek begins (or for employees

employed under section 7(k) of the Act, the

starting time and length of each employee’s work

period). If the employee is part of a workforce or

employed in or by an establishment all of whose

workers have a workweek beginning at the same

time on the same day, a single notation of the

time of the day and beginning day of the

workweek for the whole workforce’ or

establishment will suffice,

(6)(i) Regular hourly rate of pay for any

workweek in which overtime compensation is due

under section 7(a) of the Act, (ii) explain basis of

pay by indicating the monetary amount paid on a

App. 25

per hour, per day, per week, per piece,

commission on sales, or other basis, and (iii) the

amount and nature of each payment which,

pursuant to section 7(e) of the Act, is excluded

from the "regular rate" (these records may be in

the form of vouchers or other payment data),

(7) Hours worked each workday and total hours

worked each workweek (for purposes of this

section, a "workday" is any fixed period of 24

consecutive hours and a "workweek" is any fixed

and regular recurring period of 7 consecutive

workdays),

(8) Total daily or weekly straight-time earnings or

wages due for hours worked during the workday

or workweek, exclusive of premium overtime

compensation,

(9) Total premium pay for overtime hours. This

amount excludes the straight-time earnings for

overtime hours recorded under paragraph (a)(8) of

this section,

(10) Total additions to or deductions from

wages paid each pay period including employee

purchase orders or wage assignments. Also, in

individual employee records, the dates, amounts,

and nature of the items which make up the total

additions and deductions,

(11) Total wages paid each pay period,

- (12) Date of payment and the pay period

covered by payment.

(b) Records of retroactive payment of wages.

Every employer who makes retroactive payment

of wages or compensation under the supervision

of the Administrator of the Wage and Hour

Division pursuant to section 16(c) and/or section

17 of the Act, shall:

App. 26

(1) Record and preserve, as an entry on the pay

records, the amount of such payment to each

employee, the period covered by such payment,

and the date of payment.

(2) Prepare a report of each such payment on a

receipt form provided by or authorized by the

Wage and Hour Division, and (i) preserve a copy

as part of the records, (ii) deliver a copy to the

employee, and (iii) file the original, as evidence of

payment by the employer and receipt by the

employee, with the Administrator or an authorized

repres-entative within 10 days after payment is

made.

(c) Employees working on fixed schedules. With

respect to employees working on fixed schedules,

an employer may maintain records showing

instead of the hours worked each day and each

workweek as required by paragraph (a)(7) of this

section, the schedule of daily and weekly hours

the employee normally works. Also,

(1) In weeks in which an employee adheres to this

schedule, indicates by check mark, statement or

other method that such hours were in fact actually

work. by him, and

(2) In weeks in which more or less than the

scheduled -hours are worked, shows that exact

number of hours worked each day and each week.

App. 27

Federal Rules of Civil Procedure

F.R.C.P. 50(a) and (b)

Judgment as a Matter of Law in Actions Tried by

Jury; Alternative Motion for New Trial;

Conditional Rulings

(1) If during a trial by jury a party has been fully

heard on an issue and there is no legally sufficient

evidentiary basis for a reasonable jury to find for that

party on that issue, the court may determine the issue

against that party and may grant a motion for

judgment as a matter of law against that party with

respect to a claim or defense that cannot under the

controlling law be maintained or defeated without a

favorable finding on that issue.

(2) Motions for judgment as a matter of law may be

made at any time before submission of the case to the

jury. Such a motion shall specify the judgment

sought and the law and the facts on which the moving

party is entitled to the judgment.

Renewal of Motion for Judgment After Trial;

Alternative Motion for New Trial. Whenever a

motion for a judgment as a matter of law made at the

close of all the evidence is denied or for any reason is

not granted, the court is deemed to have submitted the

action to the jury subject to a later determination of

the legal questions raised by the motion. Such a

motion may be renewed by service and filing not later

than 10 days after entry of judgment. A motion for a

new trial under Rule 59 may be joined with a renewal

of the motion for judgment as a matter of law, or a

new trial may be requested in the alternative. If a

App. 28

verdict was returned, the court may, in disposing of

the renewed motion, allow the judgment to stand or

may reopen the judgment and either order a new trial

or direct the entry of judgment as a matter of law. If

no verdict was returned, the court may, in disposing

of the renewed motion, direct the entry of judgment

as a matter of law or may order a new trial.

F.R.C.P. 59

New Trials; Amendment of Judgments

(a) Grounds. A new trial may be granted to all or

any of the parties and on all or part of the issues (1)

in an action in which there has been a trial by jury,

for any of the reasons for which new trials have

heretofore been granted in actions at law in the courts

of the United States; and (2) in an action tried without

a jury, for any of the reasons for which rehearings

have heretofore been granted in suits in equity in the

courts of the United States. On a motion for a new

trial in an action tried without a jury, the court may

open the judgment if one has been entered, take

additional testimony, amend findings of fact and

conclusions of law or make new findings and

conclusions, and direct the entry of a new judgment.

(b) Time for Motion. A motion for a new trial shall

be served not later than 10 days after the entry of the

judgment.

(c) Time for Serving Affidavits. When a motion

for new trial is based upon affidavits they shall be

served with the motion. The opposing party has 10

days after such service within which to serve

opposing affidavits, which period may be extended

App. 29

for an additional period not exceeding 20 days either

by the court for good cause shown or by the parties

by written stipulation. The court may permit reply

affidavits.

(d) On Initiative of Court. Not later than 10 days

after entry of judgment the court of its own initiative

may order a new trial for any reason for which it

might have granted a new trial on motion of a party.

After giving the parties notice and an opportunity to

be heard on the matter, the court may grant a motion

for a new trial, timely served, for a reason not stated

in the motion. In either case, the court shall specify

in the order the grounds therefor.

(e) Motion to Alter or Amend a Judgment. A

motion to alter or amend the judgment shall be served

not later than 10 days after entry of the judgment.

App. 30

APPENDIX "E"

Pe

Bas Oy ya eee PENS 4 <0

Se @ Kaktovik

a— | Nee

%

|

YI / IK |

KEVIN POWELL / Anchorage Daily News