Appendix — Leahy v. City of Chicago

Supremé Court, U.8.

FILED

ys 961240 FE 4 1997

NOFFICE OF THE CLERK

In THE

Supreme Court of the United States

OCTOBER TERM, 1996

DANIEL LEAHY, et al.,

Petitioners,

vs.

CITY OF CHICAGO,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

APPENDIX TO THE

PETITION FOR WRIT OF CERTIORARI

PERRY M. BERKE SUSAN P. MALONE

Counsel of Record 20 N. Wacker Drive

BURTON I. WEINSTEIN Suite 1900

Baskin, Server, Berke, Chicago, Illinois 60606

Weinstein & Spiro (312) 726-2638

20 N. Wacker Drive

Suite 1900

Chicago, Illinois 60606

(312) 346-8090

Attorneys for Petitioners

Midwest Law Printing Co., Chicago 60610, (312) 321-0220

rer ee eee tere meee Pete

TABLE OF CONTENTS

APP.

PAGE

A—Leahy Appeal II,

96 F.3d 228 (7th Cir. 1996), and Order Deny-

ing Petition for Rehearing with Suggestion for

SG ee Bor an A-l

B—Leahy II,

District Court Opinion (1995) .............. B-1

C—Leahy Appeal I,

994 F.2d 333 (7th Cir. 1998) ............... C-1

D—Leahy I,

785 F.Supp. 726 (N.D. Ill. 1992) ........... D-1

E—Statutes and Regulations .................. E-1

F— Names of Individual Petitioners ............ F-1

A-l

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Nos. 95-2015, 95-2016, 95-2017, 95-2018

DANIEL LEAHY, JAMES MARTINEZ,

MICHAEL D. Moore, et al.,

Plaintiffs-Appellants,

v.

CITY OF CHICAGO, ILLINOIS,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 89 C 9354—George M. Marovich, Judge.

ARGUED APRIL 11, 1996—DEcIDED SEPTEMBER 11, 1996

Before BAUER, CUDAHY, and Evans, Circuit Judges.

BAvuER, Circuit Judge. Chicago police officers sued the

City of Chicago, alleging violations of the overtime pro-

visions of the Fair Labor Standards Act, 29 USC.

§§ 201-219 (“FLSA”). The officers claimed various restric-

tions on their meal periods rendered those periods com-

pensable work time under the FLSA. The district court

initially dismissed the case, and we reversed and re-

manded for further development of the facts regarding

the frequency and duration of interruptions during the

meal periods. On remand, the district court granted the

City’s motion for summary judgment, finding that the of-

ficers’ meal periods were not compensable work time

A-2

under the FLSA. This time around we affirm, but on dif-

ferent grounds than the district court.?

Section 7(a) of the FLSA requires employers to pay

overtime to employees who work more than 40 hours in

a workweek. 29 U.S.C. § 207(a). However, the FLSA

allows public agencies engaged in law enforcement activ-

ities to calculate overtime for law enforcement personnel

based on a 28 day work period rather than the standard

seven day period. 29 U.S.C. § 207(k). Under section 7(k),

the departments must pay overtime only when employees

have “tours of duty which in the gate exceed” 171

hours in a 28 day period. 29 U.S.C. § 207(kX1); 29 C.F.R.

§§ 553.201(a), 553.230. The Chicago Police Department

operates under section 7(k)’s exemption. Its officers work

shifts of eigh. .nd-one-half hours, which include one un-

paid half-hour meal period. The crux of this lawsuit is

whether the officers’ half-hour meal period is work time

which should count towards the 171 hour limit beyond

which they must receive overtime pay.? William Leahy

1 This case represents four consolidated Or ehin Leahy v. City of

Chicago (No. 95-2015), Alexander v. City of Chicago (No. 95-2016),

Accosta v. City of Chicago (No. 95-2017), and Arkana v. City of

Chicago (No. 95-2018).

2 Although FLSA does not define “work,” two regulations set

out the circumstances in which meal periods may be excluded from

the calculation of hours worked. First, 29 C.F.R. § 785.19a) pro-

vides:

(a) Bona fide meal periods. Bona fide meal periods are not

worktime. Bona fide meal periods do not include coffee breaks

or time for snacks. These are rest periods. The employee must

be completely relieved from duty for the purposes of eating

regular meals. . . . The employee is not relieved if he is re-

quired to perform any duties, whether active or inactive, while

eating. For example, an office employee who is required to

eat at his desk or a factory worker who is required to be at

his machine is working while eating.

29 C.F.R. § 785.1%a). 29 C.F.R. § 553.223(b), which applies to agen-

cies that elect to use the § 7(k) exception, permits the exclusion

(Footnote continued on following page)

A-3

and nineteen other current and former Chicago police of-

ficers initiated this action in state court in November

1989, claiming that the restrictions on their meal periods

made those periods compensable work time under the

FLSA. Those restrictions include: officers must receive

permission from a dispatcher to take a meal period; of-

ficers must receive permission from a supervisor to leave

their assigned districts during meal periods; officers must

remain in uniform and comply with various rules govern-

ing conduct while in uniform; no more than two officers

2 continued

of meal periods from the calculation of hours worked on tours of

duty of 24 hours or less

provided that the employee is completely relieved from duty

during the meal period, and all the other tests in § 785.19 of

this title are met. On the other hand, where law enforcement

personnel are required to remain on call in barracks or similar

quarters, or are e in extended surveillance activities

(e.g., “stakeouts”), t ey are not considered to be completely

re from duty, and any such meal periods would be com-

pensable.

29 C.F.R. § 553.223(b).

With these regulations in mind, we and other circuit courts have

adopted the “predominant benefit” test for determining whether

meal periods constitute compensable work time under the FLSA.

See, e.g., Alexander, 994 F.2d at 337; Avery v. City of Talladega,

24 F.3d 1337, 1345 (11th Cir. 1994); Henson v. ki County

Sheriff t., 6 F.3d 531, 534 (8th Cir. 1993); Lamon v. City of

Shawnee, F.2d 1145, 1155-57 (10th Cir. 1992), cert. denied, 507

U.S. 972 (1993). An employee is considered to be completely re-

lieved from duty during a meal — when the employee’s time

is not yong predominantly for the benefit of the employer. Alezx-

ander, F.2d at 337. The FLSA requires compensation for meal

periods ~— which a police officer cannot comfortably and ade-

quately spend the mealtime because the officer’s time or atten-

tion is devoted primarily to official responsibilities. Lamon, 972

F.2d at 1155-56. If during meal periods a police officer’s time and

attention are primarily occupied by a — nag tage cha cage

the procurement and consumption of food, then the officer is com-

pletely relieved from duty and is not entitled to compensation

under the FLSA. Z7d. at 1157.

A-4

may congregate during a meal period without prior per-

mission; officers in two-person units must take their meals

at the same time; officers must be available to end their

meals upon request; officers must respond to emergencies

and requests for assistance by the public; and officers

must be available by radio to the dispatcher.

The City moved for summary judgment on two grounds.

First, the City contended that the Portal-to-Portal Act,

29 U.S.C. § 259, barred the suit because the police depart-

ment had based its practice of exciuding the half-hour

meal periods from compensable work time on a good faith

reliance on a Department of Labor Letter Ruling. Second,

the City asserted that the collective bargaining agreement

between the City and the police officers declared that the

officers’ meal periods are not compensable work time, and

therefore served as a complete defense to the lawsuit. The

district court rejected both grounds upon which the City

based its motion, and instead granted summary judgment

on the merits, finding that the restrictions on the officers

and the interruptions during their meal periods did not

make the meal periods compensable time under the FLSA.

We review the district court’s summary judgment deter-

mination de novo.

The plaintiffs argue that the district court improperly

granted summary judgment on the merits because dis-

covery was not complete on the issue of the frequency

and duration of interruptions during officers’ meal periods.

The City concedes this, and therefore does not defend the

district court’s reasoning. Instead, the City justifies the

grant of judgment on a ground the district court

rejected—that the collective bargaining agreement be-

tween the City and the police officers satisfies the FLSA

by providing that officers will receive overtime pay if they

work a full eight hours and also work during their meal

period. Both ies acknowledge that discovery was com-

plete as to this issue. We agree that the collective bar-

gaining agreement protects the plaintiffs’ rights to over-

time compensation under the FLSA, and affirm the grant

of summary judgment on that basis. Flynn v. Sandahl,

58 F.3d 283, 289 (7th Cir. 1995). F

A-5

Collective Bargaining Agreement

The Fraternal Order of Police (“FOP”) has acted as the

collective bargaining representative of most Chicago police

officers since 1979. During that time, the FOP and the

City have entered into several collective bargaining agree-

ments providing for fixed salaries for officers, as well as

overtime pay at the rate of time-and-one-half for all hours

worked in excess of eight hours in a day or 40 hours in

a week. A memorandum of understanding attached to all

of the collective bargaining agreements sets out certain

benefits, including a half-hour meal period during each

tour of duty. The collective bargaining agreements estab-

lish a grievance procedure for disputes about the inter-

pretation or application of the agreement, and provide for

arbitration before a neutral party for those disputes not

resolved during the grievance procedures. It is undisputed

that the FOP never has filed a grievance asserting that

the uncompensated half-hour meal period constitutes a

breach of the collective bargaining agreement.

Under the FLSA, employers and employees may make

“reasonable provisions of contract [to guide] the computa-

tion of work hours where precisely accurate computation

is difficult or impossible” See Tennessee Coal, Iron &

Railway Co. v. Muscoda Local No. 123, 321 U.S. 590, 603

(1944). See also Skidmore v. Swift & Co., 323 U.S. 134,

136-37 (1944); Bowers v. Remington Rand, Inc., 159 F.2d

114, 116 (7th Cir. 1946), cert. denied, 330 U.S. 843 (1947).

This means that employers and employees may resolve

whether certain activity is “work” through a collective

b ini ment, as long as the ment comports

with the F A. See Beaston v. Scotland Sch. for Veterans’

Children, 693 F. Supp. 234, 289 (M.D. Pa. 1988), affd,

869 F.2d 587 (3d Cir. 1989). Here, if the collective bargain-

ing agreement’s guarantee of overtime compensation for

time worked in excess of eight hours in an eight-and-one-

half hour tour of duty protects Chicago police officers’

FLSA rights to overtime compensation, then the -

ment is a defense to liability under the FLSA Be the

plaintiffs’ suit cannot succeed. This makes perfect sense

A-6

in situations where it is difficult to define precisely what

constitutes working time.

Here, the collective bargaining agreement provides that

‘“{ajll time in excess of the hours worked in a normal

workday (8 hours) and the normal workweek (40 hours)

shall be compensated” at the rate of time-and-one-half.

If an officer works more than = hours, the officer is

entitled to overtime pay. The Py ies’ agreement therefore

assumes that generally an officer is not working during

a meal period, but provides for appropriate compensation

when an cfficer actually does work during the meal. In

fact, as the City argues, the collective bargaining agree-

ment actually is more generous than the FLSA, ehieh

provides for overtime compensation only when an officer

works more than 171 hours in a 28 day period.

The district court found that the collective bargaining

agreement did net specifically address whether meal periods

were compensable work time, and therefore the agree-

ment by itself could not support summary ayo age in

favor of the City. In our previous opinion, which was

based on a less developed record than we have here, we

suggested in a footnote that the collective bargaining

agreement was only one factor to consider in determining

whether meal periods are compensable work time. Alez-

ander, 994 F.2d at 339 n.11. However, upon further

review, we conclude that the collective bargaining agree-

ment can and does outright preclude the plaintiffs’ claim.

The agreement clearly states that an officer is entitled

to overtime rates for hours worked in excess of eight

hours per day. If an officer works more than eight hours

in a day as a result of working during a meal period, the

City will pay overtime rates for the excess work time.

The FLSA requires no more. Alexander, 994 F.2d at 345

(Bauer, C.J., dissenting).

Indeed, the individual inquiry facilitated by the grievance

process is the most efficient way to determine whether

an officer’s meal period should be compensabie work time.

The situation here—a police department of some 12,000

A-7

officers in different districts with different shift schedules

and different exigencies arising each day that might af-

fect officers’ meal periods—is not conducive to a one-shot

solution. The officers want just such a solution: because

some officers on some days miss all or part of their meal

periods, the plaintiffs want all meal periods to be com-

pensable work time. That would brook a result we can-

not sanction, where officers might be paid for doing

nothing more than eating during their meal periods. In-

stead, we conclude that the collective bargaining provi-

sion guaranteeing overtime pay to officers who work more

than eight hours in a day compensates officers if they

work during their meal periods, and therefore fully pro-

tects the officers’ FLSA rights.*

CONCLUSION

For the foregoing reasons, we affirm the district court’s

order granting the City’s motion for summary judgment.

AFFIRMED.

Cupany, Circuit Judge, dissenting:

Judge Bauer, for the new majority, has done a skillful

job of reviving and restating a substantial part of his dis-

sent in the earlier appeal of this case, Alexander v. City

of Chicago, 994 F.2d 333, 342 (7th Cir. 1993). In Alez-

ander, we (or rather a fractionally different panel) refused

to approve a judgment on the pleadings for the City on

* Some of the plaintiffs are sergeants, who are not covered by

the collective bargaining agreement because of their rank.

ts receive one- hour of overtime compensation in addi-

tion to eight hours of regular pay for each eight-and-one-half-hour

tour of duty that they work. The tour of duty includes one half-

hour meal period. pe gorge therefore work an eight-and-one-half

hour tour of duty and get paid for eight-and-one- hours. The

FLSA requires no more than this.

A8

an undeveloped record like the one that is now before

us. In that phase of the case, I wrote for the old major-

ity and Judge Bauer dissented. The case and the issue

to be resolved have not changed in any respect, but the

mye has changed. And this 1s decisive. As a result the

aw seems to have changed without so much as a nod of

recognition by the new majority to the law of the case

doctrine, which has been flagrantly violated here. This in

itself is more than enough to compel rejection of the (new)

majority opinion.

The majority says here that the collective bargaining

agreement can be a complete defense to a Fair Labor

Standards Act claim when the agreement supplies a dis-

positive definition of “work.”! The majority opinion in

Alexander specifically rejected this approach:

Although a fact finder might consider [a collective

bargaining agreement] as one among many factors in

determining whether the officers were completely

relieved of duty, it certainly does not outright pre-

clude the officers’ claim.

Id. at 339 n.11. The present opinion is thus in total con-

tradiction of Alexander, but comports closely with the

analysis of Judge Bauer’s dissent in that earlier case. In

his Alexander dissent, Judge Bauer asserted:

Here, the City is bound by the collective bargaining

agreement which requires that the Officers receive

overtime rates when they work during their meal

periods. The Officers do not allege that the City has

breached the collective bargaining syria: and, ab-

sent such an allegation, I assume that the City fully

complies with its terms. Consequently the City pays

the Officers if they work during their meal periods

and does not pay them if they do not work during

their meal periods. FLSA requires no more.

1 Here, of course, the agreement supplies no definition of “work.”

si ciicaiaai

;

A-9

Id. at 345. The adoption of this analysis by the present

majority obviously disregards the law of the case.

In order to deal at least cosmetically with this unseemly

state of affairs, the majority opinion states that our pre-

vious opinion “was based on a less developed record than

we have here” and concludes that “upon further review,

we conclude that the collective bargaining agreement can

and does outright preclude the plaintiffs’ claim.” Maj. Op.

at 6. Assuming that the majority recognizes the “pre-

dominant benefit” test relied upon in Alexander, the con-

clusion that the collective bargaining agreement alone can

outright preclude the plaintiffs’ claim must imply that the

required factual inquiry has been conducted and all of the

facts other than the collective bargaining agreement have

been shown to be inconsequential. This suggestion defies

reality. The undeveloped—in fact, fragmentary—record

now before us is in all relevant respects no different than

the undeveloped record that confronted the Alexander

panel. The record has not changed; only the composition

of the panel has changed. All sides agree that discovery

in this case is not complete. It is for this reason that the

City concedes that Judge Marovich’s summary judgment

on the merits cannot be affirmed for the reasons on which

he relied. If discovery is not over, this court can hardly

conclude that the collective bargaining agreement provides

dispositive facts. Alexander clearly held that the predomi-

nant benefit test could be applied only after the complete

development of the relevant evidence.”

The majority’s “further review” of the unchanged col-

lective b ining agreement leads it to suggest (contrary

to Alexa ) that the agreement is such an important

factor that it makes all others pale into insignificance. The

majority supports this suggestion by citing Tennessee

Coal, Iron & Railway Co. v. Muscoda Local No. 123, 321

U.S. 590, 603 (1944), for the proposition that “employers

2 It is, of course, possible that summary judgment on the merits

might be appropriate here after the completion of discovery.

aise ficies, BD Nica? attnd cr vi Be iad HA > a -

A-10

and employees may make ‘reasonable provisions of con-

tract [to guide] the computation of work hours where pre-

cisely accurate computation is difficult or impossible.’ ”

Maj. Op. at 5.

The majority negiects to point out, however, Tennessee

Coal’s admonition that:

The Fair Labor Standards Act was not designed to

codify or perpetuate those customs and contracts

which allow an employer to claim all of an employee’s

time while compensating him for only part of it. Con-

gress intended, naead to achieve a uniform national

policy of guaranteeing compensation for all work or

employment engaged in by employees covered by the

Act. Any custom or contract falling short of that

basic policy, like an agreement to pay less than the

minimum wage requirements, cannot be utilized to

deprive employees of their statutory rights.

Id. at 602-03. In short, the FLSA establishes statutory

rights which may not be contracted away. As the Supreme

Const. tans tte “ . . congressio y granted LSA

rights take precedence over conflicting provisions in a col-

lectively bargained compensation agreement.” Barrentine

v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 740-

41 (1981). Thus, even if the collective bargaining agree-

ment had explicitly defined the officers’ meal periods as

non-compensable, an FLSA action could be sustained if

the meal periods were actually for the predominant bene-

fit of the employer.

Here, of course, the collective bargaining agreement con-

tains no such definition. In the district court, the City

moved for summary judgment on the grounds that the

collective bargaining agreement declared that the offi-

cers’ meal a were not compensable work and there-

fore served as a complete defense to the lawsuit. Judge

Marovich rejected this position, finding that the collective

bargaining agreement “fails to include any agreement re-

garding the meal periods.” Dist. Ct. Op. at 11. This find-

ing is obviously correct, and the majority has not sug-

-—% Lt aon call

A-1l

gested anything in the agreement that would put it in

doubt. Rather, the majority rests its case on the fact that,

“The agreement clearly states that an officer is entitled

to overtime rates for hours worked in excess of eight

hours per day.” Maj. Op. at 6. This virtual truism hard-

ly addresses the question now before us—whether officers’

meals involve “work.” In fact, the collective bargaining

agreement has nothing to say on the issue before us, as

the Alexander panel held and as Judge Marovich has sub-

sequently found.

The majority opinion would leave the determination of

whether the officers’ meal periods constitute “work” to

case-by-case grievance arbitration. In fact, the majority

opinion seems to rest on nothing more substantial than

the belief that such arbitration may be a better way to

resolve the question than would litigation in federal court.

However, there is no abstention doctrine that tells us to

abstain in favor of an arbitrator. Nor is there any like

doctrine of primary jurisdiction. In fact, the Supreme

Court has held that a worker may pursue a remedy under

the FLSA even after losing a grievance arbitration. Bar-

rentine, 450 U.S. at 740 (“No exhaustion requirement or

other procedural barriers are set up, and no other forum

for enforcement of statutory rights is referred to or cre-

ated by the statute.”).

The issues that are before us have been successfully liti-

gated by courts in a number of jurisdictions where griev-

ance arbitration might have been an alternative means

of resolving the issues. See, e.g., Lamon v. City of Shaw-

nee, 972 F.2d 1145 (10th Cir. 1992), cert. denied 507 U.S.

972 (1993); Berry v. County of Sonoma, 30 F.3d 1174

(9th Cir. 1994), cert. denied 115 S. Ct. 1100 (1995); Hen-

son v. Pulaski County Sheriff Dept., 6 F.3d 531 (8th Cir.

1993); Reich v. New York City Transit Authority, 45 F.3d

646 (2d Cir. 1995); Renfro v. City of Emporia, 948 F.2d

1529 (10th Cir. 1991), cert. denied 503 U.S. 915 (1992);

Wahl v. City of Wichita, 725 F. Supp. 1133 (D. Kan. 1989).

Wahl involved an agreement requiring that officers who

worked in excess of 40 hours per week should receive

| |

A-12

overtime pay at the rate of one-and-one-half times their

regular rate of pay. Wahl, 725 F. Supp. at 1136. Such

provisions are presumably common in labor agreements

throughout the country but do not resolve the compen-

sability issue for FLSA purposes. The agreement did not

resolve the issue in Wahl, and the City has cited no case

where such a provision was conclusive on the question

of compensability under the FLSA. See also, Berry, 30

F.3d at 1182 (collective bargaining agreement not disposi-

tive); Reich, 45 F.3d at 647.

In analyzing a question similar to that presented in the

case before us (whether firefighters must be compensated

for time spent on call), the Supreme Court noted the fact-

specific nature of such determinations and the role which

the employment agreement should play in the analysis.

The Court stated:

We have not attempted to, and we cannot, lay down

a legal formula to resolve cases so varied in their

facts as are the many situations in which employment

involves waiting time. Whether in a concrete case

such time falls within or without the Act is a ques-

tion of fact to be resolved by appropriate findings

of the trial court. This involves scrutiny and construc-

tion of the agreements between the particular par-

ties, appraisal of their practical construction of the

working agreement by conduct, consideration of the

nature of the service, and its relation to the waiting

time, and all of the surrounding circumstances.

Skidmore v. Swift & Co., 323 U.S. 134, 136-37 (1944) (cita-

tions omitted). The fact that a collective bargaining agree-

ment, rather than a simple employment contract, is in-

volved here does not change this basic analysis. As the

Court pointed out in Barrentine:

In contrast to the Labor Management Relations Act,

which was designed to minimize industrial strife and

to improve working conditions by encouraging em-

ployees to promote their interests collectively, the

A-13

FLSA was designed to give specific minimum pro-

tections to individual workers ....

Barrentine, 450 U.S. at 739 (emphasis in original).

Indeed, the assertion that merely by providing for over-

time pay in its collective bargaining agreement an em-

ployer may insulate itself from vo igg 3 Page scrutiny borders

on the preposterous. Yet the majority’s opinion essentially

boils down to just such an assertion.

The majority also suggests that grievance arbitration

would be more efficient than litigation under the FLSA

in this case. The suggestion is apparently that allowing

12,000 officers to bring individual grievances about meal

periods would be more efficient than would a decision

about those periods under the FLSA. There might be rea-

sons to prefer tens of thousands of individual grievance

procedures over one lawsuit; but “efficiency” is not one

of those reasons.

Therefore, I respectfully dissent.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

A-14

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

November 7, 1996.

Before

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. RicHarD D. Cupany, Cireuit Judge

Hon. TERENCE T. EVANS, Circuit Judge

DANIEL LEAHY, et al.,

Plaintiffs-Appellants,

Nos. 95-2015, 95-2016,

95-2017, 95-2018

City OF CHICAGO,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

Nos. 89 C 9354, 90 C 7284, 92 C 667, 94 C 2237—George M. Marovich, Judge.

ORDER

On consideration of the petition for rehearing with sug-

gestion for rehearing en banc filed in the above-captioned

case by plaintiffs-appellants and the answer filed by the

defendant-appellee, no judge in active service has re-

A-15

quested a vote thereon, and a majority of the judges on

the original panel have voted to deny.*

Therefore, the petition for rehearing with suggestion for

rehearing en banc is hereby denied.

* The Honorable Joel M. Flaum did not participate in the consid-

eration of the petition for rehearing en banc.

OA ener RAG INID .

B-1

APPENDIX B

[Dated March 28, 1995]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

IN RE: )

) Hon. George Marovich

CHICAGO POLICE DEPARTMENT ) 89C 9354

F.L.S.A. MEAL PERIOD ) 90C 7294

LITIGATION ) 92C 667

) 94C 2237

MEMORANDUM OPINION AND ORDER

Chicago police officers (“Officers”) have filed suits

against the City of Chicago (“City”) alleging violations of

the overtime provision of the Fair Labor Standards Act

of 1938 (“FLSA”) because of various restrictions placed

upon their meal period. The Officers claim that these

restrictions render their meal period compensable under

the FLSA. The Officers filed four cases against the City.

Leahy v. City of Chicago, 89 C 9354 was brought as a

representative action, with over 5,500 police officers

opting into it. Alexander v. City of Chicago, 90 C 7294,

Accosta v. City of Chicago, 92 C 667, and Arkana v. City

of Chicago, 94 C 2237, were filed as individual actions.

Approximately 173 additional plaintiffs were named in

Alexander, 1621 in Accosta, and 309 in Arkana. All four

cases were consolidated for purposes of discovery and dis-

positive motions and are referred to as captioned above.

This Court granted judgment on the pleadings for the

City in holding that the Officers’ meal period was not

compensable work time under the FLSA, and the plain-

B-2

tiffs appealed. The Seventh Circuit reversed and remand-

ed holding that the allegations in the Officers’ complaints

were sufficient to raise a viable claim, the merits of

which could not be resolved as a matter of law on the

limited facts available. This action is before this District

Court. Discovery is complete and the City moved for

summary judgment. The City alleges that the Portal-to-

Portal Act, 29 U.S.C. § 259 (“Portal Act”) is a bar to the

Officers’ action, and that a collective bargaining agree-

ment beiween the City and the Officers declares that the

Officers’ meal period is not compensable work time. For

the reasons set forth below, we grant the City’s motion

for summary judgment.

LOCAL RULE 12

In this district, Local Rules 12(m) and 12(n) require the

parties moving for and opposing summary judgment

under Rule 56 of the Federal Rules of Civil Procedure to

state the material facts of the case. Local Rule 12(m)

requires the moving party to provide a supporting memo-

randum of law, including a statement of material facts as

to which that party contends there is no genuine issue

and which entitles that party to summary judgment as

a matter of law. The movant is required to set each fact

in a short numbered paragraph and include a specific

reference to the record to support that fact.

Local Rule 12(n) requires the party opposing summary

judgment to submit a supporting memorandum of jaw,

including a supporting statement responding to each

numbered paragraph in the movant’s statement of ma-

terial facts. The party opposing summary judgment must

state any disagreement to the material facts set forth by

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the moving party. If the party opposing summary judg-

ment fails to state any disagreement with the facts set

forth in the movant’s statement, these facts are deemed

admitted. These requirements have been strictly enforced

in this district. See Pasant v. Jackson Nat'l Life Ins. Co.,

768 F. Supp. 661, 663 (N.D. Ill. 1991); Davis v. Frapolly,

756 F. Supp. 1065, 1069-70 (N.D. Ill. 1991), and in the

Court of Appeals. See Brown v. United States, 976 F.2d

1104, 1108 (7th Cir. 1992); Capitol Converting Equip.,

Inc. v. LEP Transp., Inc., 965 F.2d 391, 294-95 (7th Cir.

1992); Bell, Boyd and Lloyd v. Tapy, 896 F.2d 1101, 1103

(7th Cir. 1990).

The following statement of facts is drawn from a care-

ful consideration of the City’s Motion for Summary Judg-

ment, its 12(m) statement and the Officers’ 12(n) state-

ment, and the record of this case.

BACKGROUND

The Officers are past and present members of the

Chicago Police Department (“CPD”) assigned to the

patrol and traffic divisions. All sworn CPD members may

be divided into three broad categories: 1) those who are

not assigned to field duties and who generally are

assigned to an eight hour tour of duty; 2) those who are

assigned to field duties and primarily receive their

assignments from the CPD’s communications system via

radio; and 3) those who are assigned to field duties but

generally do not receive assignments via the CPD’s com-

munications system.’

1 We will address those sworn members of the CPD who are

assigned to field duties and receive their assignments via

(continued...)

B-4

All personnel who are assigned to field duties are

scheduled for eight and one half hour tours of duty,

including a one half hour uncompensated meal period.

The Officers filed suit charging that the City’s failure to

compensate them for their meal period violates the

FLSA. The Officers claim that the restrictions that the

City places upon their meal period render the meal

period compensable under the FLSA. Specifically, the

Officers claim that they are restricted during their meal

breaks in the following ways:

1. Officers must respond to requests for assistance

or information from members of the public. Officers

are recognizable to the public because the officers are

required to carry their service weapons and remain

in full uniform, if on uniform duty.

2. Officers (patrol officers) are required to remain

within the district and/or sector of assignment unless

prior permission to leave such area is granted by a

supervisor.

3. Officers are required to adhere to all regulations

concerning conduct while in uniform, i.e., officers

must refrain from congregating (no more than two

officers may be present in the same establishment

without prior permission); officers must refrain from

the consumption of alcoholic beverages; officers must

' (...continued)

radio. We will not address those sworn members of the CPD

who are assigned to field duties but do not receive their

assignments via CPD’s communications system because it is

undisputed that this group has fewer restrictions placed upon

their meal period than those receiving assignments via radio.

We will not address those sworn members of the CPD who are

not assigned to field duties because they are supervisory per-

sonnel who automatically receive one half hour of automatic

overtime pay for each tour of duty.

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refrain from conduct deemed by the CPD to be inap-

propriate or tending to reflect poorly upon the uni-

form.

4. a) Officers who have assigned portable radio

units must maintain the radio units with them and

remain in radio contact and respond to both calls for

information and calls regarding police emergencies

on such radios.

b) Officers not assigned to portable radio units

must spend their meal period at a location where

they can be reached by telephone, must provide the

dispatcher with the telephone number and must

respond to calls or requests for information on such

telephones.

5. Officers must receive permission from the dis-

patcher to take a meal period, and such permission

may be and frequently is denied depending upon the

workload of the district and the availability of other

police officers to respond to calls.

We will first address the City’s Portal Act defense.

Next, we will address the City’s collective bargaining

agreement defense. Finally, we will address whether the

restrictions placed upon the Officers’ meal period render

the meal period compensable overtime under the FLSA.

DISCUSSION

Summary judgment is appropriate only when the

nleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, present

no genuine issue as to any material fact and the moving

party is entitled to judgment as a matter of law. Fed. KR.

Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-

323 (1986). On issues where the nonmovant bears the

B-6

ultimate burden of proof, he must present definite,

competent evidence to rebut the motion. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 256-257 (1986). Sum-

mary judgment is granted only when the record reveals

that no reasonable jury could find for the non-moving

party. Karazanos v. Navistar Int'l Transp. Corp., 948

F.2d 332, 335 (7th Cir. 1991). In ruling on a summary

judgment motion, the court “must construe the facts

alleged in the light most favorable to the party opposing

the motion for summary judgment.” Stumph v. Thomas

& Skinner, Inc., 770 F.2d 93, 97 (7th Cir. 1985) (quoting

Janowiak v. City of South Bend, 750 F.2d 557, 559 (7th

Cir. 1984).

A. Portal Act Defense

The City contends that it is entitled to summary judg-

ment because the Portal Act is a per se bar to the Offi-

cers’ action. The Portal Act provides in relevant part:

. .. no employer shall be subject to any liability or

punishment for or on account of the failure of the

employer to pay minimum wages or overtime com-

pensation under the Fair Labor Standards Act of

1938, as amended, . . . if he pleads and proves that

the act or omission complained of was in good faith[,]

in conformity with[,] and in reliance on any written

administration regulation, order, ruling, approval, or

interpretation of [the Administrator of the Wage and

Hour Division of the Department of Labor] . . . Such

a defense, if established, shall be a bar to the act or

proceeding, notwithstanding that after such act or

omission, such administrative regulation, order, rul-

ing, approval, interpretation, practice, or enforcement

policy is modified or rescinded or is determined by

judicial authority to be invalid or of no legal effect.

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Thus, the Portal Act insulates an employer from liability

under the FLSA if the employer acted on the basis of a

government agency’s interpretation of law, even if the

agency’s interpretation later turns out to be wrong.

Equal Employment Opportunity Comm'n v. Home Ins.

Co., 672 F.2d 252, 263 (2d Cir. 1982). To establish the

Portal Act defense, employers must prove three interre-

- lated elements: (1) that their action was taken in reli-

ance on a ruling of the Administrator of the Wage and

Hour Division of the Department of Labor; (2) that their

action was in conformity with that ruling; and (3) that

their action was in good faith. Cole v. Farm Fresh

Poultry, Inc., 824 F.2d 923, 926 (11th Cir. 1987); Equal

Employment Opportunity Comm'n, 672 F.2d at 263.

The City asserts that the Portal Act is a per se bar to

the Officers’ action because the CPD’s long-standing

practice of excluding one-half hour meal periods from

compensable work time is based upon a good faith re-

liance on a Department of Labor Letter Ruling. We begin

our analysis of the City’s Portal Act defense with an

inquiry into a series of alleged CPD daily meetings which

occurred throughout the summer and fall of 1985. The

regular participants of these me>tings were James

Sazama, a CPD lieutenant presently assigned as an In-

spector in the Auditing and Internal Control Division

(“Sazama”); William Alexander, a CPD lieutenant pres-

ently assigned as an Inspector in the Auditing and Inter-

nal Control Division (“Alexander”); and Gary Clark, a

CPD patrol officer presently assigned as Manager of

Police Payroll in the Finance Division (“Clark”). Sazama,

Alexander, and Clark (“the small group”) met to review

the CPD policies, practices, and procedures in light of

Garcia v. San Antonio Metro. Transit Auth., 469 U.S.

B-8

528, 533 (1985), which made the FLSA applicable to

state and local government. Periodically, the small group

met with a larger committee headed by Dennis Nowicki,

then-Deputy Superintendent of the CPD, to analyze the

CPD policies, practices, and procedures.

In addressing the impact of Garcia on the CPD, the

small group claims to have analyzed the CPD’s meal

policy according to a Los Angeles Department of Labor

Letter Rule (“Letter Ruling”). This Letter Ruling ad-

dressed the question of whether the meal period of

uniformed officers in Los Angeles could be treated as

non-compensable time under FLSA. The small group

allegedly determined that based on the three-part test of

the Letter Ruling, the CPD need not compensate the

Officers’ meal periods for the following reasons: (1) one-

half hour is a sufficiently long meal period; (2) the meal

periods are taken at suitable times during the tour of

duty; and (3) the Officers have no duties to perform

during times they are not being compensated because, in

the event that an officer is called upon to perform police

work during a meal period, that officer is entitled to an

extended meal period, another meal period, or overtime

compensation if the interrupted meal cannot be made up.

Those in the small group also determined that based on

their personal experiences, citizen interruptions as refer-

enced in the Letter Ruling are infrequent and brief. Fur-

ther, the small group allegedly met with the larger com-

mittee which concurred with every aspect of the small

group’s comparison of the Letter Ruling to the CPD meal

period policy.

Unfortunately, the CPD’s file regarding the effect of

the FLSA on CPD policies and procedures has been de-

stroyed in accordance with the CPD record retention

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schedule. Oddly enough, not one member of the small

group has any recollection of exactly what was covered at

any particular meeting; whether any written documents

were generated at these meetings; what anyone said; or

who was at the “larger committee meetings.” The Offi-

cers argue that the small group failed to fully analyze

the CPD’s meal period policy under the three-part test of

the Letter Ruling. Specifically, the Officers assert that

the Letter Ruling did not provide a clear answer to the

particular situation of the CPD Officers’ meal period and

that “good faith reliance” is a material fact question. The

Officers also maintain that the conclusions of Alexander,

Sazama, and Clark and the concurrence of the larger

committee are insufficient to establish that the CPD

meal period policy is in conformity with the Letter Rul-

ing.

To be successful under the Portal Act defense, the City

must prove that it relied on the Letter Ruling; that its

action was in conformity with that ruling; and that its

action was in good faith. Because the small group is

unable to recall any details of the alleged numerous

meetings, we are unable to assess whether the City even

relied on the Letter Ruling in analyzing its meal period

policy, much less whether the City’s action was in good

faith. We have no set of facts on which to conclude that

the small group adequately evaluated the Letter Ruling.

Because we cannot say, as a matter of law, that the City

relied in good faith on the Letter Ruling, we cannot find

that the Portal Act defense applies here. We turn to the

next defense, which is the collective bargaining issue, to

determine if this dispute has already been resolved be-

tween the parties and is incorporated in the collective

bargaining agreement.

B-10

B. Collective Bargaining Agreement

The City argues that it is entitled to summary judg-

ment because the City and the Officers, through arms’

length negotiations, have agreed that the Officers’ meal

period is not compensable work time. Under the FLSA,

employers and employees may make “reasonable provi-

sions of contract or custom” that govern the computation

of work hours where precisely accurate computation is

difficult, or where there is substantial question as to

whether certain activity or non-activity is “work.” Ten-

nessee Coal, Iron & Railway Co. v. Muscoda Local No.

123, 321 U.S. 590, 602 (1944). Thus, employers and

employees may resolve the question of whether certain

activity or non-activity is “work” under the FLSA

through a written collective bargaining agreement.

Beaston v. Scotland Sch. for Veterans’ Children, 693 F.

Supp. 234, 239 (M.D. Pa. 1988), aff'd, 869 F.2d 587 (3d

Cir. 1989); General Elec. Co. v. Porter, 208 F.2d 805, 814

(9th Cir. 1953), cert. denied, 347 U.S. 951 (1954); Bowers

v. Remington Rand, Inc., 159 F.2d 114, 116 (7th Cir.

1946), cert. denied, 330 U.S. 843 (1947); Tennessee Coal,

Iron & Railway Co., 321 U.S. at 602. Furthermore, in

determining what constitutes “work” under the FLSA,

courts are obligated to ascertain whether the parties

have reached an express or implied agreement on the

matter. Skidmore v. Swift & Co., 323 U.S. 134, 137

(1944).

The City argues that beginning with the parties’ first

contract negotiations in 1981 and continuing through the

parties’ fifth and final contract negotiations in 1991, the

City and the Fraternal Order of Police (“FOP”) agreed to

an uncompensated meal period. The City supports this

contention by pointing to the fact that the FOP repeated-

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ly dropped its proposals for paid meal periods; therefore,

the FOP agreed that the meal period was not compensa-

ble. The City also points to numerous benefits that the

FOP successfully bargained for during the contract nego-

tiations.

The Officers maintain that the FOP never explicitly

agreed to the uncompensated meal period during any one

of these five contract negotiations. In fact, the Officers

assert that although the FOP repeatedly proposed that

the Officers’ meal period be compensable, the parties

never even discussed the restrictions on the officers’ meal

period. The Officers argue that the FOP “did not want to

take a hard position that might result in the entire

elimination of the meal period.”

Of course, our starting point must be the collective

bargaining agreement itself; and that document fails to

include any agreement regarding the meal periods. In

order to determine whether an implied agreement exists

between the parties in the absence of this express agree-

ment, we must look to the intent of the parties and the

circumstances surrounding the agreement. Upon exami-

nation of the competing and divergent views of the FOP’s

abandonment of the meal period issue, it becomes evi-

dent that a disputed issue of fact exists as to whether

this issue was encompassed in the collective bargaining

agreement. However, even in light of this disputed fac-

tual issue, the court must still examine the FLSA and

determine whether relief can be granted under the cir-

cumstances.

C. Compensability of Meal Period

The FLSA requires employers to pay overtime to

employees who work more than forty hours per week.

B-12 |

§ 207(a). However, § 207(k) creates an exception to the

standard wage and hour provisions of the FLSA (“§ 7(k)”

exception). Under § 7(k) public law enforcement and fire

departments may declare work periods from seven to

twenty-eight consecutive days. Employees working with-

in a twenty-eight day work period are entitled to over-

time if they work in excess of 171 hours within that

period. The City has elected to pay the Officers on the

basis of a twenty-eight day work period, and the parties

agree that if the Officers work more than 171 hours

within that period, they are entitled to overtime pay. The

sole issue remaining before us is whether the Officers’

meal period is work time which should be included with-

in the 171 hour calculation.

Although the FLSA does not define “work,” two FLSA

regulations set out the circumstances in which meal

periods may be excluded from hours worked. First, 19

C.F.R. § 785.19(a) provides:

(a) Bona fide meal periods. Bona fide meal periods

are not work time. Bona fide meal periods do not

include coffee breaks or time for snacks. These are

rest periods. The employee must be completely re-

lieved from duty for the purposes of eating regular

meals. Ordinarily 30 minutes more is long enough for

a bona fide meal period. A shorter period may be

long enough under special conditions. The employee

is not relieved if he is required to perform any duties,

whether active or inactive, while eating. For ex-

ample, an office employee who is required to eat at

his desk or a factory worker who is required to be at

his machine is working while eating. 19 C.F.R.

§ 785.19(a).

Second, for those agencies using the § 7(k) exception, 29

C.F.R. § 553.223(b) provides that mealtime may be ex-

B-13

cluded from hours worked on tours of duty of less than

24 hours

provided that the employee is completely relieved

from duty during the meal period, and all the other

tests in § 785.19 of this title are met. On the other

hand, where law enforcement personnel are required

to remain on call in barracks or similar quarters, or

are engaged in extended surveillance activities (e.g.,

“stakeouts”), they are not considered to be completely

relieved from duty, and any such meal periods would

be compensable. 29 C.F.R. § 553.223(b).

Both of these regulations contain the same “completely

relieved of duty standard” yet use extremely different

examples to describe when an employee is not completely

relieved of duty. However, the “completely relieved of

duty standard” is not necessarily different for each sec-

tion. Rather, a law enforcement employee is “completely

relieved of duty” during a meal period when the em-

ployee’s time is not spent predominantly for the benefit

of the employer. In other words, “FLSA requires remu-

neration for meal periods during which a police officer is

unable comfortably and adequately to pass the mealtime

because the officer’s time or attention is devoted primari-

ly to official responsibilities.” Alexander v. City of Chica-

80, 994 F.2d 333, 337 (7th Cir. 1993) (citing Lamon v.

City of Shawnee, 972 F.2d 1145, 1157 (10th Cir. 1992),

cert. denied, 113 S. Ct. 1414 (1993)). See also Avery v.

City of Talladega, 24 F.3d 1337, 1345 (11th Cir. 1994)

(adopting Lamon standard); Henson v. Pulaski County

Sheriff Dept., 6 F.3d 531, 534 (8th Cir. 1993) (adopting

Lamon standard). Therefore, the Lamon standard will

govern our assessment of whether the Officers’ meal

period is work time which should be included within the

171 hour calculation.

B-14

For purposes of our analysis, we will assume that all

of the restrictions that the Officers claim are placed upon

their meal period are true, and we will address each

restriction in turn. First, the Officers claim that their

meal period is restricted because they must respond to

requests for assistance or information from members of

the public. The Officers assert that they are easily recog-

nizable to the public because the officers are required to

carry their service weapons and remain in full uniform,

if on uniform duty. The Officers maintain that the inter-

ruptions from citizens last anywhere from a few minutes

to a total disruption of the meal period and occur on the

average between 30-40% of the time.” The Officers gen-

erally cite the following as examples of citizen interrup-

tions: requests for directions, requests for traffic ticket

information, requests for general information, reports of

disturbances or fights, and comments on community

problems.

This situation is analogous to the situation in Albee v.

Village of Bartlett, 861 F. Supp. 680, 685 (N.D. Ill. 1994).

The officers in Albee claimed that their meal period

should be compensable under the FLSA because the meal

period was only occasionally interrupted by questions

from civilians. The court focused on the short duration of

the citizen interruptions in determining that the officers

had not been “badgered by civilians to the extent that

* The Officers’ Affidavits, Group Ex. 1, 2, and 3 assert that

citizen interruptions last anywhere from a few minutes to a

total disruption of the meal period and occur between 10-80%

of the time. Based on these 240 affidavits, we have calculated

that the citizen interruptions occur on the average between 30-

40% of the time. Accordingly, we will refer to the frequency of

citizen interruptions as occurring between 30-40% of the time.

B-15

their meal period was not their own.” Id. at 685-86. See

Alexander, 994 F.2d at 341 (Crabb, J., concurring) (the

frequency of interruptions rather than the possibility of

interruptions determines whether officers’ attention is

devoted primarily to official responsibilities during meal

periods). Further, the court held that the officers’ meals

are not compensable because civilian interruptions are

largely a function of where law enforcement employees

choose to take their meals. Jd. at 685. For example, em-

ployees who pick locations at the center of town are more

likely to be approached by civilians. Jd. at 686.

Other circuits have also resolved this issue against the

officers. The Tenth Circuit found that officers’ responsi-

bility to respond to citizen inquiries does not render a

meal period compensable because “(t]hat a police officer

is on-call and has some limited responsibilities during

meal periods does not perforce mean the officer is work-

ing.” Armitage v. City of Emporia, 982 F.2d 430, 432

(10th Cir. 1992) (citing Lamon, 972 F.2d at 1157). The

Eighth Circuit concluded that the possibility that citizens

may ask officers questions during meal periods does not

render the meal periods predominantly for the benefit of

the employer. Henson, 6 F.3d at 536. See also Bagrowski

v. Maryland Port Auth., 845 F. Supp. 1116, 1120 (D. Md.

1994) (occasional citizen inquiries during meal period

does not mean that officers were primarily engaged in

work-related activities), Moreover, the fact that officers

must remain in uniform during their meal period makes

no difference. By the nature of their job, officers must be

able to respond to emergencies without the delay of

changing back into the required uniform. Albee, 861 F.

Supp. at 688. Accord Avery, 24 F.3d at 1347; City of

Univ. Park v. University Park Police Ass’n, 766 S.W.2d

531, 532 (Tex. Ct. App. 1989).

B-16

We conclude that the requirement that Officers re-

spond to citizen inquiries during a meal period does not

render their meal period compensable under the FLSA.

The interruptions from citizens could last only a few

minutes, and the interruptions allegedly occur on the

average only between 30-40% of the time. The frequency

and extent of these alleged interruptions does not lead us

to the conclusion that the Officers are badgered by

civilians to the extent that their meal period is not their

own. Thus, the Officers are not engaged in work-related

duties during their meal period simply because they

must respond to citizen inquiries. Such a conclusion

could lead to the following absurd result: an officer

enters a restaurant and spends thirty seconds pointing

a civilian in the right direction; the officer is then com-

pensated for the entire thirty minutes of the meal period.

We decline to accept this logic and find that citizen in-

terruptions do not transform the Officers’ meal period

into time spent for the predominant benefit of the City.

Moreover, we find that the Officers’ requirement to

remain in uniform makes no difference. Critical to police

work is the ability to respond to emergency situations.

The time-consuming task of changing back into the

required uniform after a meal period would thwart this

ability. Therefore, these restrictions do not render the

Officers’ meal period compensable under the FLSA.

Second, Officers are required to remain within their

district and/or sector of assignment unless prior permis-

sion to leave the area is granted by a supervisor. Ad-

dressing this very issue, the Eleventh Circuit concluded

that no reasonable jury could find that officers’ meal

periods are spent predominantly for the benefit of the

City notwithstanding the restriction on officers to remain

within their jurisdiction during their meal periods. Avery,

yea. Sep oes a Se Se all all

B-17

24 F. 3d at 1347. Accord Bagrowski, 845 F. Supp. at

1120 n.4. Similarly, in Albee, the court concluded that

“there is no substance to the objection that officers are

not permitted to leave town during their half-hour

breaks.” 861 F. Supp. at 688. Accord City of Univ. Park,

766 S.W.2d at 532.

We are unable to imagine why the Officers would be

unable comfortably and, adequately to pass their meal-

time at a restaurant within their own jurisdiction. Fur-

thermore, this restriction does not require the Officers to

devote either their time or their attention to official

responsibilities. We conclude that even Officers who

must eat at restaurants within their own jurisdiction are

fully able to devote their time and attention to satisfying

their appetite. Therefore, the Officers’ obligation to re-

main within their district and/or sector does not render

their meal period compensable under the FLSA.

Third, Officers are required to adhere to all regulations

concerning conduct while in uniform, 1.e., officers must

refrain from congregating, which is defined that no more

than two officers may be present in the same establish-

ment without prior permissicn; officers must refrain from

the consumption of alcoholic beverages; officers must

refrain from conduct deemed by the CPD to be inappro-

priate or tending to reflect poorly upon the uniform.

These restrictions are comparable to the restrictions in

Armitage, 982 F.2d at 431.

The detectives in Armitage were not allowed to con-

sume alcohol during lunch and were required to act in a

professional manner toward the public. Jd. Nevertheless,

relying on the Lamon standard, the Tenth Circuit con-

cluded that the detectives were not primarily engaged in

work-related duties during their meal period. Jd. Similar-

B-18

ly, in Albee, the officers complained that they usually

could not take lunch with another officer. 861 F. Supp.

at 688. However, the court concluded that this limitation

is inherently compelled by the limited numbers of police

department personnel and by the need to have some

personnel on active duty at all times. Jd.

Remaining sober and professional during lunch does

not merit compensation under the FLSA. We find that

these requirements in no way force the Officers to devote

their time and attention to official responsibilities. The

City inevitably benefits from employing sober and pro-

fessional officers, yet it does not follow that the Officers’

meal period is predominantly for the City’s benefit. We

find that such restrictions do not convert the Officers’

meal time into work time under the FLSA.

Fourth, Officers who have assigned portable radio units

must mairitain the radio units with them, remain in

radio contact, and respond to both calls for information

and calls regarding police emergencies. Officers not as-

signed to portable radio units must spend their meal

period at a location where they can be reached by tele-

phone, must provide the dispatcher the telephone num-

ber, and must respond to calls or requests for informa-

tion. The Eleventh Circuit addressed identical restric-

tions in Avery, 24 F.3d at 1347. The court found that

neither the officers’ responsibility to leave their radios on

during lunch nor the detectives’ responsibility to leave a

telephone number where they may be reached during

lunch inhibits these employees’ ability to “comfortably

and adequately pass the mealtime.” Jd. at 1347 (citing

Lamon, 972 F.2d at 1158). The Eight Circuit also ad-

dressed this restriction in Henson, 6 F.3d at 536. The

court determined that the officers’ responsibility to

monitor their radios during lunch did not mean that the

B-19

officers spent their meal breaks predominantly for the

benefit of their employer. Accord Lamon, 972 F.2d at

1157; Albee, 861 F. Supp. at 686; Bagrowski, 845 F.

Supp. at 1120.

Being on-call does not make meal time work time. The

Officers are fully able to “comfortably and adequately

pass the mealtime” even with their radios on. While the

City may benefit from having the Officers available to

respond to potential police emergencies, this restriction

is not for the predominant benefit of the City. In fact, the

City alleges that this restriction is for the benefit of the

Officers. For exampLe, the dispatcher may need to con-

tact an officer regarding a family or personal emergency.

Regardless, it is undisputed that if an officer is called to

duty via radio or phone during meal period and misses

the entire meal period, then the City must compensate

the officer.’ If the Officers do not work, they do not get

paid. If the Officers work, they get paid. We find this

policy to be logical. Thus, we conclude that the Officers’

alleged requirement to remain in either radio or tele-

phone contact does not render the Officers’ meal periods

compensable under the FLSA.‘

* The Officers allege that they are discouraged from reporting

a missed or interrupted meal period. However, the City has

referenced a number of grievances that the Officers have filed

regarding missed meal periods. Moreover, we will not fault the

City for an officer’s individual decision not to file a grievance

for a missed meal period. See Albee, 861 F. Supp. at 686 (City

not responsible for ensuring that officers submit overtime

cards for a missed meal period).

* Fifth, the Officers must receive permission from the dis-

patcher to take a meal period, and allegedly such permission

may be and frequently is denied depending upon the workload

of the district. We need not address this issue because it is

(continued...)

B-20

The trend is clear. Notwithstanding restrictions on

meal periods, meal time is not work time under the

FLSA unless the employees’ time is spent predominantly

for the benefit of the employer. As referenced by the

preceding case law, even looking at the totality of the

restrictions placed upon the Officers’ meal period, we do

not find that the Officers’ meal period is predominantly

for the benefit of the City. In sum, no reasonable fact-

finder could find from the evidence presented that the

Officers are primarily engaged in work-related activities

during their meal period. Accordingly, the Officers’ meal

period is not compensable under the FLSA. Therefore,

summary judgment for the City is appropriate.

7 CONCLUSION

Defendant’s motion for summary judgment is granted.

ENTER:

/s/ George M. Marovich

GEORGE M. MAROVICH

UNITED STATES DISTRICT JUDGE

DATED: March 28, 1995

* (...continued)

undisputed that if an officer misses an entire meal period,

then the City must compensate the Officer. Moreover, the re-

quirement to receive permission from a dispatcher precedes

the Officers’ meal period; it is not a restriction during the meal

period. Because dispatchers monitor police officers’ assign-

ments, this requirement is compelled by the very nature of the

police work.

eae ee ee mT

C-1

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Nos. 92-1441, 92-1442 & 92-1448

JULIE ALEXANDER, CARMEL G. ABBATE,

BoZEMAN ANDERSON, et al.,

Plaintiffs-Appellants,

Vv.

City oF CHICAGO, a municipal corporation,

Defendant-Appellee.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

Nos. 90 C 7294, 89 C 9354 & 92 C 667—George M. Marovich, Judge.

ARGUED NOVEMBER 9, 1992—DecipEp May 12, 1993

Before BAUER, Chief Judge, CuDaHy, Circuit Judge,

and Crass, District Judge.*

CupDaHy, Circuit Judge. A group of Chicago police of-

ficers alleged that the extent of the restrictions applied

to their half-hour meal breaks required that they be com-

pensated for such breaks under the Fair Labor Standards

Act, 29 U.S.C. §§ 200-219. The district court granted the

City’s motion for judgment on the pleadings in the first of

three related cases and subsequently dismissed the com-

panion cases. The officers appeal. We reverse.

* The Honorable Barbara B. Crabb, Chief a of the United

States District Court for the Western District of isconsin, is sit-

ting by designation.

C-2

I.

Under section 7(a) of the Fair Labor Standards Act

(FLSA), employers must pay overtime to employees who

work more than forty hours weekly. 29 U.S.C. § 207(a).

An exception to that provision, embodied in section 7(k) of

the FLSA, 29 U.S.C. § 207(k), allows public law enforce-

ment and fire departments to declare work periods from

seven to 28 consecutive days; under that scheme, employ-

ees working within a 28-day work period are entitled to

overtime if they work more than 171 hours. The City of

Chicago, which has elected to use the permitted exemp-

tion, allows its police officers overtime at time and a half

of their pay for any hours over 171 in a 28-day period.

The officers work shifts of 8.5 hours, which includes one

uncompensated half-hour meal period.

Twenty current and former Chicago police officers ini-

tiated this action in state court in November 1989 alleging

that the rules and restrictions Pag to their half-hour

meal periods necessitated that periods be counted

as compensable hours within the tour of duty pursuant to

the FLSA. Leahy v. City of Chicago, 785 F. Supp. 724

(N.D. Ill. 1992).

Specifically, the plaintiffs’ complaint puts forth an ex-

tensive list of requirements to which the officers must

adhere during their meal breaks: officers must receive

permission—frequently denied—to take a meal period, and

cannot take that period during the last hour of a shift

assignment; they must remain within their district; they

must remain in full uniform while adhering to myriad reg-

ulations regarding conduct while in uniform; officers are

not permitted to take meals at locations other than estab-

lishments serving food and those in two-person units must

take meals together; officers must be available to termi-

nate their meals upon request; no more than two officers

may be present in the same establishment; officers must

refrain from conduct that the department deems inappro-

priate for an officer, apparently including playing golf,

- |

ical ial

2 C-3

reading nondepartmental publications, resting and napping;

officers must refrain from drinking alcohol; they must re-

spond to emergencies and requests for assistance by the

public; and they must either spend the riod where they

can be reached by phone, or, i amloned to portable units,

keep the units with them. Officers also are subject to re-

Med cirveetey CY inspectors during meal periods. In lim-

ited circumstances, officers can request prior permission

to disregard some of the above-noted restrictions, such

as that prohibiting more than two officers from eating at

the same place.

The action was removed to federal court and about 5,600

other police officers joined the original plaintiffs in the

first case, Leahy v. City of Chicago, 785 F. Supp. 724

(N.D. Ill. 1992). Others who missed the cutoff date for

joining the action filed separate complaints in Alexander

v. City of Chicago and Accosta v. ity of Chicago. The

complaints allege the same restrictions; amended complaints

in the Alexander and Accosta actions also allege that re-

quests by the public for assistance and information and

interruptions by supervisors and inspectors occur regularly

and frequently.

The City moved in the Leahy case for judgment on the

leadings pursuant to Federal Rule of Civil Procedure 12(c).

e district court granted the City’s motion for judgment

on the pleadings and then granted the City’s motions to

dismiss the Alexander and Accosta complaints for failure

to state a claim. This appeal consolidates the three sepa-

rate cases.

IT.

We review de novo the district court’s order granting

the motion for judgment on the pleadings. There remains

some confusion, however, regarding the nature of the dis-

trict court’s inquiry—that is, whether the case is governed

by the standard for motions to dismiss or should instead

C-4

be treated as a motion for summary judgment.! In United

States v. Wood, 925 F.2d 1580 (7th Cir. 1991), this court

held, seemingly without qualification, that a 12(c) motion

for judgment on the pleadings is subject to the same stan-

dard as a rule 12(bX6) motion to dismiss. Jd. at 1581. In

that event, the district court, viewing all facts in a light

most favorable to the non-moving party, may grant the

motion only if “it is beyond doubt that the non-movant

can plead no facts that would support his claim for relief.”

Id. (citing Thomason v. Nachtrieb, 888 F.2d 1202, 1204

(7th Cir. 1989)); Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

The district court may not look beyond the pleadings, and

all uncontested allegations to which the ~ adeng had an

opportunity to respond are taken as true. Wood, 925 F.2d

at 1581.

The defendant counters that judgment on the gee on

is, in the context of this case, more like summary

ment than like a motion to dismiss. Notwithstandi tanding Wood 2

there may be some validity to this argument. In ational

Fidelity Life Insurance Co. v. Karaganis, 811 F.2d 357

(7th Cir. 1987), this court required a party moving for

judgment on the pleadings to establish that there were

no material issues of fact to be resolved and that it was

entitled to judgment as a matter of law. Jd. at 358; see

1 The district court may have found rule 12(c)’s application per-

plexing as well; its original meek -_ to be ss to indicate

the correct motion it was City of

Chicago, No. 89 C 9354, 982 USS Dit tans 265 et “18 OD.

Ill. Jan. 9, 1992) (granting “motion for summary ee with

Leahy v. City of Chicago, 785 F. Supp. 724, 730 (N.D. Ill . 1992)

(granting “motion for judgment on the pleadings”).

2 The City argues that the Wood court did not intend to work

any in the law governing rule 12(c) motions. See Defen-

dant’s Br. at 16 n.4. Indeed, the case that the Wood court cites

as authority for its statement the use of the 12(bX6)

standard— Saco Nachtrieb, 888 F.2d 1202, 1204 (7th Cir.

1989)—clearly limited the application of the standard for motions

to dismiss in rule 12(c) cases to situations in which the movant

specifically asserted 12(b) defenses. /d.; see also discussion infra.

UE de =

C-5

also 5A Charles A. Wright and Arthur R. Miller, Federal

Practice and Procedure § 1368 at 530 (1990) (noting that

courts will not grant a rule 12(c) motion if a material is-

sue of fact exists); id. § 1369 at 535 (stating that the stan-

dard courts apply for summary judgment and for judgment

on the pleadings “appears to be identical”),

A defendant may use a rule 12(c) motion after the close

of the pleadings to raise various rule 12(b) defenses re-

garding procedural defects, in .which case courts apply the

same standard applicable to the corresponding 12(b) mo-

tion. Thomason v. Nachtrieb, 888 F.2d 1202, 1204 (7th Cir.

1989); 5A Wright & Miller, § 1367 at 516 (noting that rule

12(c) can serve as an “auxiliary device” for asserting such

defenses). Here, however, the City seems to use rule 12%c)

in its customary application to attempt to dispose of the

case on the basis of the underlying substantive merits.

Defendant’s Br. at 16, 20; see also 5A Wright & Miller,

§ 1367 at 509, 515 (stating that rule 12%(c) is “primarily

addressed to” this function). We therefore believe the ap-

ITT.

Although the FLSA does not define “work,” its federal

regulations set out the circumstances in which meal peri-

ods can be excluded from hours worked. Section 785.19%a)

provides:

C-6

(a) Bona fide meal = Bona fide meal periods

are not work time. tesa Agee wig Dn agh capba

clude coffee breaks or time for These are rest

periods. The employee must be completely relieved

from duty for the purposes of eating regular meals

. The employee is not relieved if he is required to

perform any duties, whether active or inactive, while

eating. For example, an office employee who is re-

quired to eat at his desk or a factory worker who is

required to be at his machine is working while eating.

19 C.F.R. § 785.1%a). For those agencies using the 7(k)

exemption, section 553.223(b) provides that meal time may

be excluded from hours worked on tours of duty of less

than 24 hours

provided that the employee is completely relieved

from duty during the meal period, and all the other

tests in § 785.19 of this title are met. On the other

hand, where law enforcement persennel are required

to remain on call in barracks or similar quarters, or

are engaged in extended surveillance activities (e.g.,

“stakeouts”), they are not considered to be complete-

ly relieved from duty, and any such meal periods would

be compensable.

29 C.F.R. § 553.223(b).

The district court, in ascertaining whether the officers’

mealtimes here are compensable work time under the

FLSA, looked only to the more specific pag

tion 553.22%(b), and the examples furnished there. i

that the Chicago officers’ mealtimes “in no way resemble”

section 553.223’s examples involving stakeouts or confine-

ment to barracks, the district court concluded that they

are not compensable and that judgment on the pleadings

was proper. Leahy, 785 F. Supp. at 730. This approach

acparenliy dettveds tenn emutonen x tn ils Chaat ecas

the district court relied on most heavily, Lee v. Coahoma

County, 987 F.2d 220 (5th Cir. 1991), which similarly

noted that the meal breaks at issue “in no way resemble

[the section 553.223] example.” Jd. at 225.

:

:

C-7

The district court’s approach falters in two ways. First,

the interplay between the federal regulations is more com-

plex than the district court acknowledges. There is no rea-

son to assume section 553.223(b) is separate and distinct

from section 785.19(a); in fact, section 553.223(b) incorpo-

rates “all the other tests in § 785.19.” 29 C.F.R. § 553.223(b).

A recent Tenth Circuit case, Lamon v. City of Shawnee,?

972 F.2d 1145 (10th Cir. 1992), cert. denied, 61 U.S.L.W.

3670 (1993), found some significance in the differences be-

tween the two regulations, but explicitly stated that its

contrasting of the two sections did not mean that the

“completely relieved of duty” standard is necessarily dif-

ferent for each section.* Jd. at 1158 n.18; see also Kohl-

heim v. Glynn County, 915 F.2d 1473, 1477 (11th Cir.

1990). As a district court within the Tenth Circuit recently

observed, Lamon “strongly implies that the ‘completely

relieved from duty’ standard appearing in both § 553.223(b)

and § 785.19 has the same meaning.” Brinkman v. Depart-

ment of Corrections, 804 F. Supp. 163, 171 (D. Kan. 1992).5

% Lamon, which involved restrictions quite similar to those alleged

in the present case, was decided after the district court issued

its opinion in this case. The district court did, however, dismiss

as distinguishable the lower court decision in Lamon because, in

part, “there existed a genuine issue of material fact as to whether

the officers had been wg geen 6 relieved of duty.” Leahy, 785 F.

Supp. at 729. The court did not explain how, on analogous facts,

no such genuine fact issue exists in the case before us.

* The dissent’s characterization of Lamon as “relying on the Sec-

retary’s —— in section 553.223(b)” is misleading. In articu-

lating the predominant benefit test that derives from the I'LSA’s

traditional application in other contexts, see, e.g. Armour & Co.

v. Wantock, U.S. 126, 133 (1944), the Lamon court clearly did

not envision section 553.223(b)’s examples as defining that stan-

dard. The Lamon court’s refusal to decide the case as a matter

of law on the same essential facts as we have here demonstrates

that its understanding of the examples and ours are akin.

* Elaborating, the Brinkman court noted that

[t]he two distinctions observed between § 553.223(b) and § 785.19

are insubstantial reasons for reading identical words differently

(Footnote continued on following page)

C-8

The examination of compensability should not turn on a

crabbed comparison between the mealtime restrictions and

the necessarily arbitrary, and certainly not all

examples in the regulations. The appropriate standard is

instead the one articulated in Lamon—a standard that sen-

sibly integrates developing case law with the regulations’

language and purpose. Under Lamon, a law enforcement

employee is completely relieved from duty — a meal

period “when the employee’s time is not spent predomi-

nantly for the benefit of the emplo ngi 972 F.2d at 1155,

1157; stated differently, the “ requires remunera-

tion for meal periods during which 3 a police officer is un-

able comfortably and adequately to pass the mealtime be-

cause the officer’s time or attention is devoted primarily

to official responsibilities.” Jd. at 1155-56; see also Armi-

tage v. City of Emporia, 982 F.2d 430 (10th Cir. 1992)

(adopting Lamon standard).

The second and more important problem with the de-

cision below is that it does not acknowledge the basic

posture of the cases it relies upon and, in particular, the

great extent to which resolution of these cases depends

upon the specific circumstances surrounding departmen-

tal policies regulating meal periods. No case that we are

aware of involving law enforcement personnel treats com-

pensability as a matter for judgment on the pleadings.

Ne early all of the cases, involving facts generally compar-

5 continued

in almost indistinguishable contexts. No rationale for havi

0 lene Scene weed pers epee ae ee cove

under § 207(k) is offered in Lamon. Section i) obviously

is intended to address the unique employment circumstances

of a law enforcement officer, fire fighter, or corrections officer.

Presumably, the same circumstances justify taking the same

approach to meal period times for those similarly employed

sc covered by § 207(k) or not.

804 F. Supp. at 171.

C-9

able to those before us, have let the matter go to trial

(either with a jury or to the court).

In Lamon, for example, the Tenth Circuit reversed a

jury verdict in favor of the plaintiffs on the basis of in-

adequate jury instructions.” The court gave no indication,

however, that the evidence did not support the verdict

or that a properly instructed jury that reached the same

verdict at a new trial would not be upheld. Indeed, the

Lamon court specifically stated that it did “not find that

the evidence points but one way and is susceptible to no

reasonable inference supporting the Plaintiffs’ claim,” adding

that “there was sufficient evidence upon which a jury could

properly have returned a verdict for the Plaintiffs on this

issue.” 972 F.2d at 1156. Accordingly, the court concluded

that “the trial court did not err in submitting to the jury

the issue of the compensability of meal periods.” Jd. at

1159.

The restrictions on the Lamon plaintiffs’ meal periods

essentially replicate those alleged in the present case. See

id. at 1156. bn their half-hour meal breaks, the City of

Shawnee’s police officers were required either to leave

a telephone number where they could be reached or to

monitor a portable radio. They had to react to emergen-

cy calls, answer to personnel shortages, respond to citizen

requests, confront crimes committed in their presence and

$ See, e.g., Armitage v. City of ig sin 982 F.2d 430 (10th Cir.

1992) (bench trial); v. Coahoma County, 937 F.2d 220 (5th Cir.

1991) (bench trial). One case resolves the issue prior to trial on

cross motions for summary judgment—though with more extensive

of Wichita, 725 F. Supp. 1133 (D. Kan. 1989). That court concluded

that epapeny are kag ages in light of > ayn of restrictions

similar to ut arguably less constraining t ose imposed on

Chicago officers. See discussion infra pages 10-12.

7 The Lamon court stated that the challenged instruction “coun-

tenanced the misapprehension that the performance of any official

duty, no matter how insignificant, during meal periods rendered

the time compensable.” 972 F.2d at 1158.

C-10

act in a responsible and professional manner. Meal loca-

tions were restricted to the city limits, or, with approval,

locations close to the city, and the officers were not al-

lowed to conduct Ba sonal business errands during their

meal breaks. Jd. These restrictions cannot fairly be char-

acterized as tighter than or substantively different from

those alleged by the plaintiffs here. Thus, if the Lamon

restrictions constituted sufficient evidence upon which a

properly instructed jury could have returned a verdict for

the plaintiffs, id., judgment on the pleadings cannot be

warranted on the facts before us.

In addition to Lamon, we also regard as instructive the

District of Kansas’s comprehensive analysis of the meal-

time compensability issue in Wahl v. City of Wichita, 725

F. Supp. 1133 (D. Kan. 1989).® The restrictions in the pres-

ent case, while akin to those in Lamon, appear to be more

8 Although the district court in the present case found Wahl to be

among the two most authoritative cases, the court rejected Wahl

because it was not a circuit court opinion and because it did not in-

volve a section 7(k) — y, 785 F. Supp. at 729-30 (find-

ing Wahl “factually ””). Informed in part by our view that

sections 553.223(b) and 1%a) generally address the same ‘“com-

pletely relieved from duty” stan see supra note 5 and accom

panying text, we find that, in major part, the WaAl court’s careful

— of the compensability question is especially helpful to our

tas.

Lee v. Coahoma County, 937 F.2d (5th Cir. 1991). In Lee, un-

like the present case, the deputies were allowed to ei

breaks wherever they pleased, though they would radio

they reached their destination and were called back in

sional emergency. Jd. at 225. The Lee court, concluding that the

SS NS Oe ee ee ee

“=

meal periods are not compensable, noted merely that

breaks at issue were not like those in the section 553.223 examples.

Id. at 225. We find that the authoritative value of Lee is impaired

by its perfunctory analysis.

C-11

inhibiting than those in Wahl. In Waal, the officers were

subject to geographical limitations, were required to an-

Swer emergency calls and to respond to crimes and citizen

inquiries and were restricted both in what they could read

and in the personal activities or errands they could per-

form. Id. at 1186-37. Unlike the plaintiffs in the case be-

fore us, however, the officers in the Wahi case were not

required to remain in full uniform or hence to com ly with

all the associated regulations of uniformed conduct, al-

though changing out of uniform was admittedly imprac-

tical on a short lunch period. Jd. Moreover, more than

two officers—but not more than “a few’—could visit the

same restaurant at once. The Wahl case also does not in-

dicate that the officers were prohibited from taking meals

at locations other than pe charvemear serving food, al-

though they were prohibited from taking meals in a tav-

ern, private club or pool hall. Jd. at 1136.

Wahl is unique among the reported cases on this nar-

row issue in that it arose prior to trial, on summary judg-

ment. The case, however, follows a special pattern among

summary judgment cases in that the parties filed cross

motions for summary judgment and generated a complete

record of uncontroverted facts by submitting affidavits,

depositions and answers to interrogatories. Looking to sec-

tion 785.19(a)’s standard as the appropriate statement of

the law, the WaAl court concluded that the plaintiffs clear-

ly were not completely relieved of their duties. Jd. at

1139. The court stated that “{wJhat matters in meal period

cases is whether the employee is subject to real limita-

tions on his personal freedom which inure to the benefit

of his employer.” Jd. at 1144. Moreover,

[tlhe rules of the city, both written and unwritten,

and the practical constraints arising from the limited

length of the break, combine to ensure the city of

a reserve of uniformed officers, immediately available

for emergency service. The restrictions on the plain-

tiffs are designed to maximize the public appearance

of the officers’ readiness. The city receives the ad-

vantages of improved public relations and the elimina-

C-12

tion of the need to hire additional officers. But as

these benefits accrue to the city, the officers are fac-

sl on corresponding limitations on their personal

om.

Id.; cf. Armour & Co. v. Wantock, 323 U.S. 126, 133

(1944) (stating that “{rjeadiness to serve may be hirea,

quite as much as service itself’).

In the case before us, a judge or a ge Se factfinder

might ultimately find for the defendant. t, however,

differs vastly from ruling for the defendant on the plead-

ings.® It is not possible in the case before us or in com-

parable circumstances in the other reported cases to re-

solve factual issues and apply the appropriate standard

to those facts at this early s as a matter of law. This

is not to say that resolution of the FLSA mealtime com-

pensability issue in the countless factual configurations

that might arise will always require a trial. What is re-

quired is sufficient development of the facts to enabie a

capable application of the appropriate predominant benefit

standard, including a determination of whether the officers

are unable to pass the mealtime comfortably because their

time or attention is devoted primarily to official respon-

sibilities.*° See Lamon, 972 F.2d at 1155-56.

® The dissent, by asserting that the plaintiffs are not entitled to

“automatic compensation” for their meal periods, post at 19, seems

to suggest that the plaintiffs claim entitlement to win here and

now. The issue at this stage, however, is whether additional fac-

tual development is essential to a proper decision.

10 The dissent gives great weight to the court’s ruling against

the plaintiffs as a matter of Brag Armitage v. City of Emporia,

982 F.2d 430 (10th Cir. 1992), where the detectives couid not con-

duct personal errands during lunch and were required to respond

to citizen inquiries and act professionally. But of course the Armi-

tage court had the benefit of a complete trial record. The Lamon

predominant benefit test—while conceivably applicable purely as

a matter of law in some instances—necessarily involves some in-

formed appraisal of how the particular mealtime limitations actually

(Footnote continued on following page)

C-13 |

Moreover, although the extent to which police officers

receive regular compensation whenever they actually are

disturbed by official duties is not a fact of record here,

we could not infer from the existence of such a policy that

officers who are not affirmatively called back to duty are

necessarily completely relieved of duty.1 There is a uni-

verse of possibilities about when a meal is “interrupted”

So as to require compensation. At this point we can only

speculate about the frequency of communication to police

officers at mealtime, the frequency and extent of inter-

ruptions, the effect of the various restrictions on an other-

wise uninterrupted meal period and a variety of other fac-

tual matters. The pleadings alone simply do not reveal

to what extent the officers’ attention was turned to of-

ficial duties.

Finally, although only the Alexander and Accosta amended

complaints—but not the Leahy complaint—specifically al-

lege, in addition to the basic restrictions, that supervisors’

interruptions and requests by the public for assistance and

information occur on a regular and frequent basis, we note

that the absence of this exact language in the Leahy com-

plaint does not alter our analysis with respect to those

particular plaintiffs. The complaint’s comprehensive catalog

of restrictions makes clear without any supplementary

10 continued

affected the officers’ mealtimes. Looking only to the pleadings in

the present case, a court cannot competently rule as a matter of

law that officers spent or did not spend their mealtime predomi-

nantly for the benefit of the employer or that their time or at-

tention was or was not devoted primarily to official responsibilities,

‘1 On a related issue, we are not persuaded by the defendants’

argument that the collective bargaining agreement between the

City and its police es vege oh the officers’ claim by confirm-

ing tl oar gal i i pactode are iat :

time within the FLSA. Although a f; might consider wack

an agreement as one among many factors in determining whether

the officers were completely relieved of duty, it certainly does not

outright preclude the officers’ claim.

C-14

magic words that further development of the particular

factual circumstances is needed before a court or jury can

judge whether the officers’ mealtimes are spent predomi-

nantly for the department’s benefit and whether officers

are unable to comfortably and adequately pass the meal-

time because their time or attention is devoted pri y

to official responsibilities. See Lamon, 972 F.2d at 1155-57.

Federal notice pleading requires no more. See Fed. R.

Civ. P. 8(a). en all reasonable inferences are drawn

in favor of the officers, the allegations in each of the three

complaints are sufficient to raise a viable claim, the merits

of which cannot be resolved as a matter of law on these

limited facts.!2

IV.

This case is appropriately resolved by allowing the trier

of fact to judge, after sufficient development of the factual

circumstances, whether the officers were completely relieved

of duty under the standard articulated in the recent Lamon

case. For the foregoing reasons, we REVERSE the district

court’s entry of judgment on the pleadings and REMAND

for further proceedings consistent with this opinion.

Crabb, District Judge, concurring. This is an extraor-

dinarily difficult case, made more so by the lack of a fac-

tual record. I agree with Judge Cudahy that a more com-

plete development of the facts is necessary to allow an

informed decision on the scope of the officers’ duties dur-

ing their lunch breaks. In this regard, I want to add a

few comments on the Rule 12(c) motion, the procedural

i? The City itself does not argue that the omissions in the Leahy

complaint distinguish it from the other two complaints. In fact,

it contends that the frequency of interruptions is irrelevant. Def.

Br. at 19-20.

]

|

|

a

|

C-15

vehicle used by defendant. As this case illustrates, the

motion is often confusing. Because it can be used to raise

procedural defects after an answer has been filed, it re-

sembles the motions brought under 12(b), including the

motion to dismiss for failure to state a claim. It can also

be used in situations in which the pleadings are complete

and without defect and raise only a question of law. See

generally, 5A Charles A. Wright & Arthur R. Miller,

Federal Practice & Procedure §§ 1367 and 1368 (1990). In

this case, it appears that defendant used it in the Leahy

case to try to resolve a question of law and that plain-

tiffs objected to its use, maintaining that factual develop-

ment of the record was necessary to resolve the case and

that their complaint was sufficient to state a claim. (In

Accosta and Alexander, defendant filed 12(bX6) motions,

which were granted by the district court, relying on the

disposition of Leahy.)

On appeal, plaintiffs argue that the district court should

have applied a motion to dismiss standard to defendant’s

12(c) motion in Leahy, that is, the district court should

have considered wheth r any set of facts might be alleged

that. would support their claim. Plaintiffs seem to be ar-

guing that the district court should not be bound by the

defendant’s characterization of its motion: whenever the

motion is filed in a situation in which there is some ques-

tion whether the complaint is sufficient on its face to state

. Se the court should apply the motion to dismiss stan-

ard.

At the outset of his opinion, Judge Cudahy declines to

adopt a motion to dismiss standard when the moving par

ty is seeking judgment as a matter of law, but he seems

to revert to it at the end. At pp. 13-14, supra, he notes

the possibility that the plaintiffs in Leahy might be able

to show that frequent interruptions turn their lunch breaks

into work time, even though these plaintiffs never made

allegations to that effect in either their original or their

amended complaint. If, when district courts are consider-

ing motions for judgment on the pleadings, they have an

obligation to consider whether the plaintiffs could come

C-16

forward with additional facts that would state a claim,

I think this should be made plain in the opinion. I would

hold that whenever a defendant moves for judgment on

the pleadings in any but the rare case in which the par-

ties agree that the pleadings set out a straightforward

question of law, the court should apply the motion to dis-

miss standard in evaluating the legal sufficiency of the

pleadings.

Turning to the merits of the case, I note that much of

the difficulty of this case lies in appl the “complete-

ly relieved from” standard to patrol se | which consists

largely of surveillance conducted in a heightened state of

readiness. The frequency of interruptions during meal

periods may operate to impose a state of readiness so like

that of actual patrol work as to warrant compensation dur-

ing all meal periods. Such a state of readiness may result

from the frequency of dispatcher-initiated calls, or again,

departmental regulations may so constrain an officer’s

choice of location and activities om | meal periods as

to require in effect that the officer orm services com-

mensurate with those of an officer who walks a beat. In

either case, officers would not be “completely relieved

from duty” within the meaning of the FLSA.

I understand Judge Cudahy to be holding that these

cases should be returned to the district court to allow the

plaintiffs a chance te show that the number and frequen-

cy of the actual interruptions require them to spend their

lunch breaks predominantly on their employer’s business.

To the extent that his opinion can be read to hold that

ee biog a peters priv of fact rg by

e act epartmental regulations,

— it. The regulations do not affirmatively require the

performance of active duties or so restrict the officer’s

chalice of location and activities as to make his lunch break

the equivalent of work time. It is the allegation of fre-

quent interruptions that raises the possibility that the offi-

cers could show that their “attention is devoted primarily

to official responsibilities” during meal periods. S the >

sence of such an allegation, one can presume that depart-

mental restrictions are intended merely to facilitate readi-

C-17

ness to respond to events of limited contingency, such as

an emergency call, or are otherwise incidental to an offi-

cer’s on-call eo ay ong! eos dg ah a be

strengthened by a showing a department opted

procedures to defer calls by the dispatcher to an officer

until after the officer’s meal break and to otherwise in-

sulate officers from recurrent disruptions. Conversely, this

presumption would be eroded by a showing of frequent

interruptions, particularly those initiated by the depart-

ment, that Suggest that restrictions are designed to con-

vert meal periods into patrol time. Lee, 937 F.2d at 225,

was decided in favor of the employer in part because evi-

dence existed that officers were called back only in an

occasional emergency. Similarly, in Lamon, although the

department had revised its administrative code to provide

that lunch periods be uninterrupted except in emergen-

cies, officers had alleged that evening meals were fre-

quently interrupted, that officers were frequently required

to respond to emergencies, and that often officers had to

fo meals entirely. 1990 U.S. Dist. Lexis 15906, at *5

and *16 (D. Kan. Oct. 4, 1990).

Standing alone, the restrictions alleged in Leahy are in-

sufficient to raise a viable claim that these plaintiffs-appel-

lants were not completely relieved from duty. However,

I agree with Judge Cudahy that plaintiffs might be able

to allege facts that would sustain their ition and entitle

them to relief. Applying a motion to dismiss standard to

their complaint, I would give them a chance to add such

allegations to their complaint and develop a factual record.

In Alexander and ~~ eer epee wr x4

quent interruptions by citizens and inspectors, alt oug

they do not allege that they are required frequently to

respond to “emergency calls” or other calls by the dis-

patcher or to undertake other duties. Although the alle-

gations suggest that officers remain free to undertake

personal errands while on their lunch breaks, unlike the

officers in Wahl, 725 F. Supp. 1133, 1137 (D. Kan. 1989)

and Lamon, when all reasonable inferences are drawn in

favor of the officers, the allegations support an inference

that the officers’ meal periods are primarily for the benefit

of the employer.

C-18

BAvuER, Chief Judge, dissenting.

The Fair Labor Standards Act (“FLSA”) requires that

police officers be primarily engaged in work-related duties

during meal periods to warrant compensation for those

meal periods. Armitage v. City of Emporia, Kansas, 982

F.2d 430, 482 (10th Cir. 1992). The Chicago police officers

(“the Officers”) claim that FLSA requires the City of Chi-

cago (“the City’) to pay them as a matter of course when

the co pil do nothing more than eat during their meal

periods.?

The majority sets out the facts alleged in the Officers’

complaints. The majority does not mention, however, that

the City pays the Officers overtime in accordance with

the collective bargaining agreement between the Officers

and the City. The agreement requires the City to pay

a police officer if the officer works during a meal period.

The Officers make no allegation that the City does not

comply with the terms of the collective ster tag i

ment. The issue in this case, then, is whether FLSA re-

quires the City to pay the Officers during their meal pe-

riod even if they do nothing other than eat ing this

time and adhere to the restrictions listed in the cers’

complaints. I disagree with both the majority’s analysis

of the regulations promulgated by the Secretary of Labor

(“the Secretary”) and with the majority’s interpretation

of decisions by other courts in similar cases. I will ad-

dress each in turn.

The majority properly points out that two regulations

guide our decision in this case. Both of these regulations

1 The Officers spereenity envision the following scenario as a

possibility. Two Chicago police officers park their squad car and

walk into a local restaurant. They sit down, order a meal, and

then spend 30 undisturbed minutes eating. Afterwards, the two

officers return to their cars and continue their patrol duties.

The Officers argue that FLSA requires the City to pay these two

officers—at no less than overtime rates—for this “work.” I dissent

because I do not agree that such a meal period is compensable

under FLSA.

C-19

interpret FLSA to mean that meal periods are not com-

pensable when employees—here, the Officers—are “‘com-

pletely relieved from duty.” 29 C.F.R. §§ 553.223(b),

785.1%a). The majority points out, and I agree, that the

two regulations are not separate and distinct. I part com-

pany with the majority because I believe that the regula-

tions indicate that the Officers do not allege facts that

avery them to automatic compensation for their meal

periods.

Section 785.19%a), the broader of the two regulations,

illustrates by example that “an office employee who is

required to eat at his desk or a factory worker who is

uired to be at his machine is working while eating”

and therefore must be compensated under FLSA. 29 C.F.R.

§ 785.1%a). Similarly, section 553.223(b), which applies spe-

cifically to cases, like this one, involving law enforcement

personnel, states that “{wJhere law enforcement person-

nel are required to remain on call in barracks or similar

quarters, or are engaged in extended surveillance activ-

ities (e.g., ‘stakeouts’), they are not considered to be com-

pletely relieved from duty, and any such meal periods

would be compensable.” 29 C.F.R. § 553.223(b).

Taking the two regulations together, as the majority

does, does not change the analysis. Both of these regula-

tions indicate that when employees covered by FLSA, in-

cluding police officers, are required to be at a particular

place—at a desk, machine, barracks, or location involving

extended surveillance—the employee is working and must

be paid. The implication of the Secretary’s examples is

that when employees are not so rigidly restricted to a

particular place, like the Officers here, they are not en-

titled to compensation under FLSA.

With no explanation and without any support from prece-

dent, the majority announces that the examples in the

regulations are “arbitrary, and certainly not all-encom-

passing.”” While I agree that the examples are not all-

encompassing, I do not agree that they are arbitrary.

Rather, the examples in sections 785.19%a) and 553.223(b)

C-20

represent the Secretary’s reasoned judgment in interpret-

ing FLSA. The majority errs by describing the examples

contained in the regulations as arbitrary. Even if FLSA

is considered ambiguous, we still must defer to the Sec-

retary’s interpretation of FLSA so long as it is based on a

permissible construction of that statute. Chevron, U.S.A.,

Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837, 843 (1984); Martin v. The Refrigeration Sch., Inc.,

968 F.2d 3, 5 (9th Cir. 1992). The majority apparently does

not believe the Secretary’s examples warrant even a cur-

sory discussion. Instead, they are dismissed as “arbitrary

and not all-encompassing.” I believe that the Secretary’s

examples are based on a permissible construction of FLSA.

See Lamon v. City of Shawnee, 972 F.2d 1145, 1157 (10th

Cir. 1992) (relying on the Secretary’s examples in section

553.223(b)), cert. denied, 61 U.S.L.W. 3620 (1993); Lee v.

Coahoma County, 937 F.2d 220, 225 (5th Cir. 1991) (same).

Sections 785.19(a) and 553.223(b)—and the examples con-

tained therein—demonstrate that the Officers do not allege

facts sufficient to show that they are so confined to a par-

ticular place during their meal periods that they should

be compensated.

I similarly disagree with the majority’s use of precedent.

In Lee, for example, several deputy county sheriffs sued

the defendant county for alleged violations of FLSA. On

appeal, the deputies challenged the district court’s find-

ing that their meal breaks were not compensable. /d. at

225. The deputies claimed that FLSA required the coun-

ty to pay them for their meal periods because the periods

were often less than thirty minutes and the deputies could

be called back to duty if an emergency arose. Jd. The

Fifth Circuit looked to the e les contained in section

553.223(b) and concluded that “{tJhe meal breaks of the

. . . deputies in no way resemble [these] example{s].”’ 937

F.2d at 225. The court added that it was “not dispositive

that the deputies could be called if an emergency arose

and this contingency does not mean that they remained

on duty.” Jd. The court also found it insignificant that

the meal periods were often less than 30 minutes. Jd. For

C-21

these reasons, the court rejected the deputies’ claims and

affirmed the district court’s decision that the deputies’

meal periods were not compensable. Jd. at 228.

In Lamon v. City of Shawnee, 972 F.2d 1145 (10th Cir.

1992), relied on by the majority, the Tenth Circuit reached

a similar result in an analogous case. There, police officers

sued the City of Shawnee, Kansas for alleged FLSA vio-

lations because the city did not pay them for their 30-

minute meal periods. Jd. at 1147. The court noted that

the officers were relieved from duty during meal periods

but, like the Officers here, had to respond to emergency

calls, citizen requests, and crimes committed in their pres-

ence. Jd. at 1149. Also like the Officers in this case, the of-

ficers in Lamon were required to leave a telephone num-

ber where they could be reached or to monitor a portable

radio during their meal periods. Jd.

In Lamon, the Tenth Circuit had to define the Secre-

tary’s “completely relieved from duty” standard in order

to decide whether FLSA required the city to compensate

the officers for their meal periods.? The court stated that

in the context of FLSA section 207(k), 29 U.S.C. § 207(k)—

the same statute at issue here—“a law enforcement em-

ployee is considered to be completely relieved from duty

during a meal period when the employee’s time is not

spent predominantly for the benefit of the employer.” Jd.

at 1155. The court added that “FLSA requires remunera-

tion for meal periods during which a police officer is un-

able comfortably and adequately to pass the mealtime

because the officer’s time or attention is devoted primarily

to official responsibilities.” Jd. at 1155-56.

As in Lee, the Lamon court relied on section 553.223(b)

instead of the more general section 785.1%a). Id. at 1156-

ov. The court noted that section 553.223(b) illustrated cir-

cumstances “involving law enforcement personnel that

2 As the majority points out, the “completely relieved from duty”

standard is contained in both sections 785.1%a) and 553.223(b).

C-22

would run afoul, if not Fines “gina pte of the ‘completely

relieved from duty’ stan ”” and pointed to the regula-

tion’s examples of “personnel required to remain on call

in a barracks or similar quarters or assigned to extended

surveillance duties, such as stakeouts.” Jd. at 1157 (citing

Lee, 937 F.2d at 225). The court found those examples

different from the restrictions placed on the officers in

Lamon and found the differences “instructive.”* Id. at

1157. The court therefore concluded that “a police officer

must primarily be engaged in work-related duties during

meal periods to warrant compensation therefor. That a

police officer is on-call and has some limited respon-

sibilities during meal periods does not perforce mean the

officer is working.” Jd. at 1157. The court held that the

district court had erred by ignoring section 553.223(b) and

instructing the jury with language that tracked only sec-

tion 785.19. Id. at 1156, 1158. The Tenth Circuit therefore

reversed the district court’s judgment in favor of the

plaintiffs on the meal period issue and remanded the case

for a new trial. Jd. at 1159.

The Tenth Circuit applied Lamon to a suit brought by

police detectives against the City of Emporia, Kansas. Ar-

mitage v. City of Emporia, Kansas, 982 F.2d 430 (1992).

In Armitage, the police detectives were required to take

3 In full, the Lamon court stated:

[Section] 553.223(b) goes on tec illustrate circumstances involv-

ing law enforcement personnel that would run afoul, if not

compensated, of the ‘completely relieved from duty’ standard,

citing the examples of personnel required to remain on cail

in barracks or similar quarters or assigned to extended sur-

veillance duties, such as stakeouts. We find these differences

instructive in determining the reach of the completely relieved

from duty standard pursuant to § 553.223(b).

Lamon, 972 F.2d at 1157. The ig es describes my characteriza-

tion of Lamon’s reliance on the tary’s examples in section

553.223(b) as “misleading.” As the above excerpt from Lamon in-

dicates, however, there is nothing misleading about my character-

ization of that case. ‘The Tenth Circuit in Lamon clearly relied

on the Secretary’s examples in section 553.223(b).

C-23

an unpaid lunch break of at least 30 minutes. Jd. at 431.

The police detectives had to notify the dispatcher of their

location in case they were needed, were not allowed to

consume alcohol during lunch, and were required to re-

spond to questions from the public if approached during

lunch. Jd. Also, like the Officers here, the police detec-

tives in Armitage were paid at the overtime rate if they

were called back to duty during lunch. Jd. The police

detectives sued the city pursuant to FLSA. After a bench

trial, the district court awarded back py for the police

detectives’ lunch periods. Jd. The Tenth Circuit reversed

because Lamon “require{d] a different outcome under

these facts.” Jd. As articulated in Lamon, the court in

Armitage stated that “the proper standard for determin-

ing compensability of a meal period is whether the officer

is ‘primarily . . . engaged in work-related duties during

meal periods.’”” Jd. at 432 (quoting Lamon, 972 F.2d at

1157). The Armitage court determined that the facts, as

found by the district court, indicated that the police detec-

tives were not primarily engaged in work-related duties

during their meal periods. 982 F.2d at 432. Accordingly,

the court reversed the award of backpay for meal periods.

Id. The court did not remand the case for a new trial,

as in Lamon, but instead substituted its judgment for the

district court’s and instructed the district court to enter

judgment for the city. Jd. at 438.

The majority in this case accurately observes that Lee,

Lamon, and Armitage all involved trials whereas here,

the district court dismissed the Officers’ compiaints. The

gist of Lee, Lamon, and Armitage, however, demonstrates

that dismissal was proper. In all three cases, the courts

ruled against the deputy sheriffs, police officers, and police

detectives. In Lee, the court affirmed the district court’s

decision that the meal periods were not compensable. In

Lamon, the court reversed a district court’s decision that

meal periods were compensable. Finally, Armitage—the

most recent pronouncement on the issue—is perhaps the

most instructive because the court in that case had the

obvious advantage of interpreting and applying both Lee

C-24

and Lamon. In Armitage, the court simply looked at the

facts, decided the case against the plaintiff police detec-

tives as a matter of law, and ordered the district court

to enter judgment for the defendant city. The Armitage

court’s conclusion that FLSA did not require the defen-

dant city to compensate the police detectives for their

meal periods is one that we should follow here. Numerous

other courts have similarly interpreted FLSA. See, e.g.,

Brinkman v. Department of Corrections, 804 F. Supp.

163, 172 (D. Kan. 1992) (merely because corrections of-

ficers may be on-call and retain some other duties over

their lunch period does not of necessity require compen-

sation); City of Univ. Park v. University Park Police

Ass’n, 766 S.W.2d 531 (Tex. Ct. App. 1989) (police ised

mealtime not compensable when mealtime break not a

predominantly for the benefit of defendant city); Weeks

v. Chief of Wash. State Patrol, 689 P.2d 732 (Wash. 1982)

(state troopers not entitled to overtime compensation for

lunch hour when lunch hour was included in their salaries

and when troopers were paid at time and a half rate if

called out during lunch hour).

* I also disagree with the majority’s interpretation of WaAl v.

City of Wichita, 725 F. Supp. 1133 (D. Kan. 1989). I do not agree

with the majority’s assertion that the restrictions the City places

on the Officers in this case are more restrictive than those in

Wahl. In fact, I believe the opposite is true. The Wahl court found

the following restrictions, none of which are alleged in this case:

officers were prohibited from lunch with their wives; offi-

cers had limited reading privileges their meal period; some

— were prohibited from going pectin: hanes drive-throughs

perma. Sp cee teller machines; other were not allowed

to watch television or play pinball or video games. /d. The court

therefore held that ‘Theeuies the plaintiffs are subject to substan-

tial limitations and duties during their meal peri 9 A en-

titled to compensation for those periods under the FLSA.” Id.

As an initial matter, Wahl is factually distinguishable from the

instant case because the restrictions in Wahl are more extensive

than those alleged here. Also, in Armitage, the Tenth Circuit ob-

served that the district court in that case (Armitage) partially

(Footnote continued on following page)

C-25

The trend is clear. FLSA does not require municipalities

to pay police officers unless the officers work during their

meal period—that is, unless the officers are primarily en-

gaged in work-related duties. The facts alleged in the com-

plaints are no different than the facts found after trial

in Lee, Lamon, and Armitage. In fact, this is an even

Stronger case for the City than for the municipalities in

those cases. Here, the City is bound by the collective bar-

gaining agreement which requires that the Officers receive

overtime rates when they work during their meal periods.

The Officers do not allege that the City has breached the

collective bargaini a! ement and, absent such an al-

legation, I assume the ity fully complies with its terms.

Consequently, the City pays the Officers if they work dur-

ing their meal periods and does not pay them if they do

not work during their meal periods. FLSA requires no

more.

There is no need for further factual development of the

Officers’ case when the facts alleged—taken together with

the collective bargainin agreement—so clearly indicate

that the City has not violated FLSA. I do not believe that

the district court’s Stee hae docket should be cluttered

with this case when the cers’ complaints are doomed.

Finally, I do not believe that federal courts should micro-

manage municipal police departments when, as in this case,

a collective bargaining agreement provides for a compen-

sation plan that fully comports with FLSA’s requirements

and the police officers do not allege that the municipality

has violated such an ment. I would affirm the district

court’s dismissal of the Officers’ complaints.

* continued

relied on Wahl to award the plaintiff police detectives compensa-

tion for their meal periods. Armitage, 982 F.2d at 431. The Tenth

Circuit rejected that result, noted that Lamon set forth the cor-

rect standard, applied that standard, and ordered the district court

to enter judgment for the defendant city. Id. at 431-33.

D-1

APPENDIX D

[Dated January 28, 1992]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DANIEL F. LEARY, et al.,

)

)

Plaintiffs, )

)

v. ) 89C 9354

CITY OF CHICAGO, ) Judge George M. Marovich

a Municipal Corporation, )

)

Defendant. )

In this matter Chicago police officers (“Officers”) seek

overtime pay for their meal breaks pursuant to the Fair

Labor Standards Act (“FLSA”), 29 U.S.C. §200 - 219.’

The City of Chicago (“City”) has moved pursuant to Fed.

R. Civ. P. (“Rule”) 12(c) for judgment on the pleadings

contending that as a matter of law the Officers are not

entitled to overtime pay. For the reasons set forth below,

we grant the City’s motion and dismiss this matter with

prejudice.

' Hereafter we will refer to various provisions of the Fair

Labor Standards Act as “Section ____.”

D-2

BACKGROUND

The Officers are past and present members of the

Chicago Police Department assigned to the patrol and

traffic divisions. The Officers are assigned to eight and

one-half hour shifts. One half hour of each shift is

allotted to an unpaid meal break.

The Officers filed suit charging that the City’s failure

to compensate them for their meal breaks violates the

FLSA.’ The Officers claim their meal breaks should be

compensable under the FLSA because they are not

completely relieved of their duties during their meal

breaks. Specifically, the Officers claim they are restricted

during their meal breaks in the following ways:

a. Officers are required to remain within the district

and/or sector of assignment unless prior permission

to leave such area is granted by a supervisor.

b. Officers are required to carry their service

weapons and remain in full uniform, if on uniform

duty, and are required to adhere to all regulations

concerning conduct while in uniform, such regula-

tions include requirements that police officer employ-

ees assigned to uniform duty wear their uniform hat

at all times while outdoors.

c. Officers must report their meal location to the

dispatcher and are required during their meal period,

* In its motion, the City argues the complaint is defective

because it does not allege that the meal break is work time

within the meaning of the FLSA. City’s Memorandum of Law

at pages 5-6. In their response, the officers seek to amend

their complaint to cure this pleading defect. We grant the Offi-

cers’ motion to amend the complaint, and we will construe the

en motion as being brought to challenge the amended com-

plaint.

EE

D-3

upon request, to terminate such meai period to

respond to calls for police assistance, to answer

questions, and to follow instructions from the dis-

patcher or superior officers.

d. Officers must report their meal location to the

dispatcher and are required during their meal period,

upon request, to terminate such meal period to

respond to calls for police assistance, to answer

questions, and to follow instructions from the dis-

patcher or superior officers.

e. Officers assigned to a two person unit are to take

their meal period with both officers taking such

period at the same time and location.

f. Meal periods may not be taken during the last

hour of a shift assignment.

g. Police officer employees are required to refrain

from conduct deemed by the department to be unbe-

coming of a police officer while on duty. Such conduct

has, on occasion, been defined to include playing golf,

reading nondepartment publications, resting or nap-

ping, or other conduct deemed by the Department to

be inappropriate or tending to reflect poorly upon the

uniform.

h. Officers must refrain from the consumption of

alcoholic beverages.

i. Officers must respond to requests for assistance

or information from members of the public.

j. Officers must refrain from congregating, which is

defined that no more than two officers may be pres-

ent in the same establishment without prior permis-

sion.

k. Officers who have assigned portable radio units

must maintain the radio units with them and remain

in radio contact and respond to calls or requests for

information on such radios.

D-4

l. Officers are subject to report and review by in-

spectors and other supervisory personnel.

m. Officers must respond to citizen or police emer-

gencies.

n. Officers not assigned to portable radio units must

spend their meal period at a location where they can

be reached by telephone, must provide the dispatcher

with the telephone number and must respond to calls

or requests for information on such telephones.

o. Officers must receive permission from the dis-

patcher to take a meal period and such permission

may be and frequently is denied depending upen the

workload of the district and the availability of other

police officers to respond to calls.

Officers’ Amended Complaint at pages 3-5.

The City argues that the meal break restrictions are

not sufficient as a matter of law to establish that the

meal periods are compensable work time under the

FLSA.

DISCUSSION

A motior for judgment on the pleadings may be

granted only if the moving party clearly establishes that

no material issue of fact remains to be resolved and that

he or she is entitled to judgment as a matter of law.

National Fidelity Life Ins. Co. v. Karaganis, 811 F.2d 357

(7th Cir. 1987). The court may consider only matters

presented in the pleadings and must view the facts in

the light most favorable to the non-moving party. Jd. The

court, however, is not bound by the non-moving party’s

legal characterizations of the facts. Jd. In considering

this motion, therefore, we assume the facts as alleged by

the Officers to be true.

Be aE A, ba aes) We Es Ot a [ns Rie aes fora ae oe ee 4. a FF Pub Eells Ee ES ee i As ead tlt i hs BP i ek oe SY he a ee ae 2 weet ve wg. = _— >? Se ee eee Se ae ret.

serge ta eee

D-5

The FLSA requires employers to pay overtime to em-

ployees who work more than forty hours per week. Sec-

tion 207(a). However, Section 207(k) creates an exception

to the standard wage and hour provisions of the FLSA.

(Hereafter we will refer to Section 207(k) as §7(k).)

Under that section, public law enforcement and fire

departments can declare work periods from seven to

twenty-eight consecutive days. Employees working

within a twenty-eight day work period are entitled to

overtime if they work in excess of 171 hours within that

period.

The City has elected to pay the Officers on the basis of

a twenty-eight day work period, and the parties agree

that if the Officers work more than 171 hours within

that period, they are entitled to overtime pay. The sole

issue before us is whether the Officers’ meal period is

work time which should be included within the 171 hour

calculation.

The FLSA does not define what is considered work

under the Act; Congress left that decision to the courts.

Hill v. United States, 751 F.2d 810, 812 (6th Cir. 1984),

cert. denied, 474 U.S. 817 (1985). And neither the

Seventh Circuit nor any district court in the Northern

District has construed the meaning of meal time in the

context of an FLSA lawsuit by employees seeking over-

time pay for meal breaks against a §7(k) employer. We

will examine two interpretive guides, the federal regula-

tions and analogous cases from other jurisdictions, to

assist our inquiry.

D-6

Two regulations speak to our issue.’ The first regula-

tion 29 C.F.R. §553.223(b), provides that mealtime can be

excluded from hours worked under the following circum-

stances:

If a public agency elects to use the section 7(k) ex-

emption, the public agency may, in the case of law

enforcement personnel, exclude meal time from hours

worked on tours of duty of 24 hours or less, provided

that the employee is completely relieved from duty

during the meal period, and all the other tests in

$785.19 of this title are met. On the other hand,

where law enforcement personnel are required to

remain on call in barracks or similar quarters, or are

engaged in extended surveillance activities (e.g.,

“stakeouts”), they are not considered to be completely

relieved from duty, and any such meal periods would

be compensable. (emphasis added)

29 C.F.R. §533.223(b) (hereafter cited as §533.223(b)).

The text of section 785.19(a), which is not limited to

§7(k) cases, states as follows:

(a) Bona fide meal periods. Bona fide meal periods

are not work time. Bona fide meal periods do not

include coffee breaks or time for snacks. These are

rest periods. The employee must be completely re-

lieved from duty for the purposes of eating regular

meals. Ordinarily 30 minutes or more is long enough

for a bona fide meal period. A shorter period may be

long enough under special conditions. The employee

is not relieved if he is required to perform any duties,

° While regulations are not binding on the court, they none-

theless offer a useful and fair.standard by which courts can

determine whether a meal period should be considered work

time under the FLSA. WadAl v. Wichita, 725 F. Supp. 1133,

1138-39 (D. Kan. 1989).

D-7

whether active or inactive, while eating. For example,

an office employee who is required to eat at his desk

or a factory worker who is required to be at his

machine is working while eating. (emphasis added)

29 C.F.R. §785.19(a) (hereafter cited as §785.19(a)). Of

note is that both regulations contain the same “complete-

ly relieved of duty standard” to determine when meal

breaks are considered bona fide meal periods and thus

are not compensable. However, the regulations use radi-

cally different examples to describe when an employee is

not completely relieved of duty. Section 785. 19a), arising

from the more general section of the regulations applica-

ble to all FLSA actions and entitled Part 785 Hours

Worked, uses as an example of an employee not com-

pletely relieved from duty an office employee who is

required to eat at his desk or a factory worker who is

required to be at his machine while eating. §785.19(a). In

contrast, §553.223(b), arising from the specific section of

the regulations applicable to §7(k) employers and entitled

Part 553—Application of the Fair Labor Standards Act

to Employees of State and Local Governments, uses as

an example of an employee not completely relieved from

duty a law enforcement officer who is required to remain

on call in barracks or similar quarters, or is engaged in

extended surveillance activities. Neither of these exam-

ples is analogous to our situation; however, both regula-

tions, and their respective examples, are cited by analo-

gous cases from other jurisdictions.

Cases from other jurisdictions have attempted to define

when an employee is completely relieved from duty so

that the meal break is not considered work time. These

cases reach a variety of conclusions based upon the

specific type of employment and the nature and number

D-8

of restrictions on the meal break. We have reviewed all

of the cases cited by the parties, and those cases for the

most part can be grouped into four broad categories.

The first category includes postal workers. See, e.g.,

Hill v. United States, 751 F.2d 810 (6th Cir. 1984), cert.

denied, 474 U.S. 817 (1985). The second category in-

cludes firefighters and emergency medicine personnel.

Kohlheim v. Glynn County, 915 F.2d 1473 (11th Cir.

1990). The third category includes law enforcement offi-

cers whose jurisdiction is limited to a specific building or

buildings and who function more in the nature of securi-

ty guards. See, e.g., Agner v. United States, 8 Cl. Ct. 635,

638 (1985), affirmed without opinion, 795 F.2d 1017

(Fed. Cir. 1986). The final category includes typical law

enforcement officers with broad jurisdiction within a

campus, municipality, county, or state. See, e.g., Lee v.

Coahoma County, 937 F.2d 220 (5th Cir. 1991).

As we conduct our analysis, we find that only those

cases in the final category are authoritative. Postal work-

ers’ meal breaks may be interrupted; however, they are

rarely interrupted to respond to emergencies. While re-

quired to respond to emergencies, firefighters and emer-

gency medical personnel typically do so out of a central-

ized station to which they must return. They generally

do not patrol the streets and therefore are not analogous

to our situation involving patrol officers. Likewise, law

enforcement personnel with jurisdiction limited to a

building or buildings do not patrol streets and therefore

are also not similarly situated to the Officers here. We

therefore only look to the final category of cases as analo-

gous to our situation.

The most persuasive authority for the City’s position is

a case handed down by the Fifth Circuit after the parties

heise inch

Wea D-9 a

briefed this motion. Lee v. Coahoma ei 937 F.2d

220 (5th Cir. 1991).‘ In Lee, sheriffs deputies brought

suit against Coahoma County for overtime wages for

meal breaks. Like our plaintiffs, the deputies were law

enforcement officers who patrolled within the county’s

jurisdiction. While on patrol, the deputies would take

meal periods on a “catch as catch can” basis. Lee, 937

F.2d at 225. They were required to radio out when they

took their meal breaks, and they could be called back to

duty in the event of an emergency.

The Fifth Circuit upheld the district court’s decision

that the twenty-minute meal breaks were bona fide meal

periods and were not compensable under §7(k). Lee, 937

F.2d at 225. As an interpretive guide, the Fifth Circuit

cited to §553.223. In particular, the Fifth Circuit quoted

§553.223(b)’s example of compensable meal periods, (law

enforcement personnel must remain on call in barracks

or be engaged in surveillance activities) and compared

the deputies’ meal breaks to that example. The Lee court

held that the deputies’ meal breaks in no way resembled

the example found in §553.233. Id. The court found that

it was not dispositive that the deputies could be called if

an emergency arose, and that contingency did not mean

that they remained on duty. Id.

In its memoranda, the City cites a number of cases, all

but one of which we find distinguishable. Three of the

cases are distinguishable because they do not fit within

* If neither the Supreme Court, nor any court in our juris-

diction, has spoken to an issue, it is this court’s preference to

use as authority for interpreting federal statutes analogous

cases first from other circuits and then from o%her district

courts. If a federal case has spoken to the issue, we generally

do not look to analogous state case law.

D-10

the category of cases we find are analogous. Hill v.

United States, 751 F.2d 810 (6th Cir. 1984), cert. denied,

474 U.S. 817 (1985) (postal carriers); Bavlor v. United

States, 198 Ct. Cl. 331 (1972) (building security guards);

Agner v. United States, 8 Cl. Ct. 635 (1985), affirmed

without opinion, 795 F.2d 1017 (Fed. Cir. 1986) (special

police force for the Library of Congress). Atteberry v.

Ritchie, 243 Kan. 277, 756 P.2d 424 (1988), can be dis- ©

tinguished because it involved a negotiated employment

agreement which specifically addressed the issue of com-

pensation during meal periods. Atteberry, 756 P.2d at

429. The Atteberry Court primarily relied on contractual,

not statutory, principles in resolving the dispute.

Finally, the City cites to a Texas Appellate Court case

which is directly on point. University Park v. Univ. Park

Police Ass’n, 766 S.W.2d 531 (Tex. App. 1989). In Univer-

sity Park, the police officers had identical restrictions on

their meal periods as the restrictions at issue here.°

Nonetheless, the Texas court held that the meal periods

were not compensable because the meal breaks were not

predominately spent for the benefit of the city and could

be used for the employees’ own use and purposes.

University Park, 766 S.W.2d at 537. Because University

Park arises from the Texas Appellate Court, we look pri-

° The police officers were not permitted to take a meal break

during the first or last hour of their tour of duty; they had to

notify a dispatcher before taking a meal break; the dispatcher

could refuse to authorize a meal break at that time if other

officers were already taking meal breaks; the officers could

only eat within the city limits or within one-half mile of the

city limits; they had to remain in uniform and maintain

— and portable radios; and the officers had to respond

to ;

D-11

marily to Lee as the most influential case in support of

the City. (See footnote four.)

Likewise, as we analyze the Officers’ response, we pri-

marily focus on the two analogous federal cases cited in

their brief.®

The first case, Wahl v. Wichita, 725 F. Supp. 1133 (D.

Kan. 1989) involved Wichita police officers’ successful

efforts in obtaining overtime pay for their thirty-minute

meal periods. WaAl is factually analogous to our situa-

tion in that restrictions on the Wichita officers’ meal

periods are similar to those at issue here.’ The Wahl

court cited to §785.19(a), the more general regulation, for

the rule that an employee must be completely relieved of

duty for the meal time to be noncompensable. Given the

restrictions placed upon the meal periods, the Wahl court

held that the officers were not completely relieved of

duty during their meal breaks and thus were entitled to

be paid for that time. Wahl, 725 F. Supp. at 1144.

° We again disregard those federal and state cases which do

not involve law enforcement officers with jurisdiction over a

campus, municipality, county, or state. Kohlheim v. Glynn

County, 915 F.2d 1473 (11th Cir. 1990) (firefighters); Donovan

v. Bel-Loc Diner, Inc., 780 F.2d 1113 (4th Cir. 1985) (meal

periods of waitresses at all-night diners); Lindell v. General

Electric Company, 44 Wash. 2d 386, 267 P.2d 709 (1954) (meal

periods for security guards of nuclear power plants).

" The Wichita police could be denied meal breaks due to work

load, had geographic restrictions on the locations they could

take their meal, had to remain in radio contact throughout

their meal break, could only have two vehicles in the same

location at the same time, were subject to emergency calls and

had to respond to citizens’ questions. Wahl, 725 F. Supp. At

1136-37.

D-12

In the next case, Lamon v. City of Shawnee, 30 WH

Cases 146 (D. Kan. October 30, 1990), the district court

denied the defendant’s motion for summary judgment

because there existed genuine issues of material fact

regarding whether the police department had adopted a

§7(k) payroll scheme. Furthermore, there existed a

genuine issue of material fact as to whether the officers

had been completely relieved of duty. Thus, the case is

distinguishable.

The remaining cases cited by the Officers are state

court opinions involving state and municipal wage

statutes. Madera Police Officers Assn. v. City of Madera,

36 Cal. 3d 403, 682 P.2d 1087 (1984) (California Su-

preme Court specifically declined to reach the FLSA

issue and instead decided the case under municipal regu-

lations); Prendergast v. Tempe, 143 Ariz. 14, 691 P.2d

726 (Ariz. App. 1984) (Arizona Appellate Court held meal

periods were compensable under state statute and muni-

cipal ordinance); Rogers v. City of Scottsdale, 25 WH

Cases 251 (Ariz. Superior Court 1980) (Arizona Superior

Court held meal periods were compensable under state

statute and municipal ordinance); Los Angeles Fire &

Police Protective League v. Los Angeles, 23 Cal. App. 3d

67 (1972) (California Appellate Court held lunch periods

not compensable under municipal regulations).®

® These cases concern state wage statutes similar to the

FLSA, and some of these cases cite to federal cases inter-

preting the FLSA as a guide for interpreting equivalent state

statutes. Rogers, 25 WH Cases at 252 and Prendergast, 691

P.2d at 731. However, for reasons stated in footnote four, we

do not find these state cases as authoritative as federal cases

interpreting the FLSA.

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D-13

In our final analysis, we are left with two cases which

we find most authoritative, Lee and Wahl. We choose to

follow Lee over Wahl for two reasons. First, Lee is the

higher court and the most recent pronouncement on the

issue. The Seventh Circuit instructs district courts to

“give respectful consideration to the decisions of the

other courts of appeals and follow them whenever we

can.” Colby v. J.C. Penny Co., Inc., 811 F.2d 1119, 1123

(7th Cir. 1987); Richards v. Local 134, Intern. Broth. of

Electrical Workers, 790 F.2d 633, 636 (7th Cir. 1986), We

understand this instruction as suggesting that district

courts defer to another circuit’s analogous opinion in-

stead of another district court’s view. Cf. Richards, 790

F.2d at 636 (although decisions of other circuits are not

necessarily controlling, district courts should give them

substantial weight especially when they reject opinions

from other districts upon which the district court seeks

to rely). While it is true that Lee has not specifically

rejected Wahi, it is clear that these opinions reach oppo-

site conclusions based upon analogous facts. We thus ad-

here to the Seventh Circuit’s instruction and choose to

follow Lee.

Second, Lee, as in our situation, involved a §7(k) em-

ployer; Wahl did not. While we suspect that the Wahl

court might not have changed its result had the Wichita

Police Department adopted a §7(k) payroll scheme, it

would likely have been forced to at least change its

analysis in one significant way.

In Lee and Wahi, both courts relied upon federal regu-

lations te guide them in their interpretations of the

FLSA. Lee, 937 F.2d at 225; Wahl, 725 F. Supp. at 1138-

39. Because Wahl did not involve a §7(k) employer, it

cited to the more general regulation: §785.19(a). Lee,

D-14

however, cited to the more specific §553.223(b) and used

the example provided in that section as the basis for its

decision. We likewise will look to the more specific regu-

lation, §553.223(b), and the Fifth Circuit’s application of

that regulation in Lee. We find that the restrictions on

the Officers’ meal breaks, as described in the amended

complaint, in no way resemble the type of restrictions de-

scribed in §553.223(b) even when we view the restric-

tions in a light most favorable to the officers. We there-

fore find the Officers’ meal breaks, as described in the

amended complaint, are not compensable work time

under the FLSA.

CONCLUSION

For the reasons set forth above, we grant the Officers’

motion to amend their complaint, and we grant the City’s

motion for judgment on the pleadings.

ENTER:

/s/ George M. Marovich

GEORGE M. MAROVICH

UNITED STATES DISTRICT JUDGE

DATED: January 28, 1992

E-1

APPENDIX E

STATUTES AND REGULATIONS INVOLVED

29 U.S.C. Section 207. Maximum hours

(a1) 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 gcods 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; and

(b) No employer shall be deemed to have violated sub-

section (a) of this section by employing any employee for

a workweek in excess of that specified in such subsection

without paying the compensation for overtime employ-

ment prescribed therein if such employee is so em-

ployed—

(1) in pursuance of an agreement, made as a result

of collective bargaining by representative of em-

ployees certified as bona fide by the National Labor

Relations Board, which provides that no employee

shall be employed more than one thousand and forty

hours during any period of twenty-six consecutive

weeks; or

(2) in pursuance of an agreement, made as a result

of collective bargaining by representatives of em-

ployees certified as bona fide by the National Labor

Relations Board, which provides that during a spec-

ified period of fifty-two consecutive weeks the em-

ployee shall be employed no more than two thousand

two hundred and forty hours and shall be guaranteed

not less than one thousand eight hundred and forty

hours (or not less than forty-six weeks at the normal

E-2

number of hours worked per week, but not less than

thirty hours per week) and not more than two thou-

sand and eighty hours of employment for which he

shall receive compensation for all hours guaranteed

or worked at rates not less than those applicable

under the agreement to the work performed and for

all hours in excess of the guaranty which are also in

excess of the maximum workweek applicable to such

employee under subsection (a) of this section or two

thousand and eighty in such period at rates not less

than one and one-half times the regular rate at

which he is employed; or

(3) by an independently owned and controlled local

enterprise (including an enterprise with more than

one bulk storage establishment) engaged in the

wholesale or bulk distribution of petroleum products

if—

(A) the annual gross volume of sales of such

enterprise is less than $1,000,000 exclusive of ex-

cise taxes,

(B) more than 75 per centum of such enterprise’s

annual dollar volume of sales is made within the

State in which such enterprise is located, and f

(C) not more than 25 per centum of the annual

dollar volume of sales of such enterprise is to

customers who are engaged in the bulk distribu-

tion of such products for resale,

and such employee receives compensation for employ-

ment in excess of forty hours in any workweek at a

rate not less than one and one-half times the mini-

mum wage rate applicable to him under section 206

of this title,

and if such employee receives compensation for employ-

ment in excess of twelve hours in any workday, or for

employment in excess of fifty-six hours in any workweek,

E-3

as the case may be, at a rate not less than one and one-

half times the regular rate at which he is employed.

(k) Employment by public agency engaged in fire

protection or law enforcement activities

No public agency shall be deemed to have violat-

ed subsection (a) of this section with respect to the

employment of any employee in fire protection ac-

tivities or any employee in law enforcement activities

(including security personnel in correctional institu-

tions) 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) in tours of duty of em-

ployees 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 aggre-

gate 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 (i)) bears to 28 days,

compensation at a rate not less than one and

one-half times the regular rate at which he is

employed.

E-4

29 C.F.R. 773.19(a)

(a) Bona fide meal periods. Bona fide meal periods are

not worktime. Bona fide meal periods do not include

coffee breaks or time for snacks. These are rest periods.

The employee must be completely relieved from duty for

the purposes of eating regular meals... . The employee

is not relieved if he is required to perform any duties,

whether active or inactive, while eating. For example, an

office employee who is required to eat at his desk or a

factory worker who is required to be at his machine is

working while eating.

4

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F-1

APPENDIX F

Plaintiffs-Petitioners in Leahy v. City of Chicago

ADAMS, LLOYD J.

ADCOCK, CARMEN Y.

ADDESSO, CHARLES

ADE, DONALD J.

ADE, JAMES

ADKINS, DAVID A.

ADORJAN, EDWARD W.

AGIN, LAURA M.

AGUILAR, RICHARD L.

AGUINAGA, JOHN P.

AGUINAGA, JOSEPH C.

AGUIRRE, JOSEPH R.

ALESSIA, ADOLPH

ALEXANDER, ANNIE

ALI, KARIEM A.

ALKOVICH, WILLIM J.

ALLEN, CALVIN E.

ALLEN, DAVID

ALLEN, VALERIE L.

ALLISON, CHARLES D.

ALLOTTA, JAMES D.

ALLY, JALAL M.

ALMAGUER, XAVIER

ALMANZA, LEROY

ALSTON, EMMITT A.

ALTMAN, DALE S.

ALTMAN, EDWARD G.

ALTMAN, THOMAS F.

ALVARADO, GEORGE

ALVERIO, LUIS A.

ALVIZU, ANTHONY R.

AMARI, LOUIS V.

AMATI, MARK

AMATO, FRANK

AMATORE, JAMES V.

AMBRIZ, LORRAINE

AMELIO, ANTHONY P.

ANASEWICZ, PAUL

ANAST, MICHAEL G.

ANDERSEN, TAMI L.

ANDERSON, ALBERT

ANDERSON, ARNOLD L.

ANDERSON, DEVON M.

ANDERSON, DONALD H.

ANDERSON, DOROTHY L.

ANDERSON, DOUGLAS M.

ANDERSON, HOWARD

ANDERSON, JOHN E.

ANDERSON, KEVIN B.

ANDERSON, KIM K.

ANDERSON, LINDA S.

ANDERSON, MARIANNE Y.

ANDERSON, ROBERT F.

ANDERSON, ROBERT M.

ANDERSON, ROBERT S.

ANDERSON, ROBERT W.

ANDERSON, RONALD W.

ANDERSON, ROBERT W.

ANDERSON JR., THOMAS A.

ANDERSON II, EDGAR B.

ANDERSON JR., BRUCE

ANDERSON JR., TALMAY

ANDREWS, JOHN R.

ANDREWS, WAYNE

ANDRICOPOULOS,

THOMAS P.

ANDRIKOKUS, GEORGE

ANDRUZZI, JOSEPH J.

ANDRUZZIJR., JOSEPH J.

ANGARONE, JOSEPH

ANGARONE, MICHAEL

ANGELO, DEAN C.

ANGELO, PATRICK J.

ANGELO, THOMAS M.

ANGONE, THERESA

ANHALT, JAMES W.

ANNERINO, JOSEPH F.

ANTELEK, STEPHEN W.

ANTHOS, ROSS J.

APARO, MARY ANN

APPLE, RICHARD P.

ARBATAITIS, ROMAS

ARCHER, ROBERT

ARCHULITA, RALPH C.

ARGENTINE, FRANK W.

ARGENTINO, KATHLEEN F.

ARGULJO, ARTHUR T.

ARJONA, JUAN L.

ARMATA, RON

ARMISTEAD, LEON

ARMSTRONG, DERRICK L.

ARNDT, AUDREY A.

ARNOLD, HENDERSON A.

ARNOLD, JOHN G.

ARNOLD, LUTHER D.

F-2

ARNOLD, PEGGY J.

ARNOS JR., WILLIAM J.

ARVESEN, WALTER

ASBURY, TERRY C.

ASH, LEONARD

ASHE, LAWRENCE J.

ATHERTON, DANIEL R.

ATHINAKIS, ALAN J.

ATILANO, JESSE J.

ATILES, JOHN

ATKINS, BETH T.

ATKINSON, ELMER J.

AUGLE, RAYMOND T.

AUGUSTINE, LAWRENCE L.

AUGUSTINE, WAYNE L.

AUGUSTINE JR.,

LAWRENCE C.

AUGUSTYN, GEORGE E.

AUGUSTYN, LARRY J.

AVALOS, SHIRLEY

AVENT, MARY C.

AVERY, RODNEY D.

AVILA, JOSEPH C.

AVILA, JOSEPH E.

AVILES, DAVID

AYALA, MICHAEL

AYE, LAURA

AYE, ROBERT F.

AYERS, THOMAS F.

AZARA, JOHN T.

AZTLAN, RICHARD M.

AZZARO, DONALD J.

BABET, WILLIAM T.

BABICH, ROBERT P.

BABICZ, ROBERT E.

BABUSCH, JOHN N.

BACH, CHESTER R.

BACH, JAMES N.

BAGANS, AMY V.

BAGNALL, THOMAS

BAHR, KEVIN T.

BAIETTO, ROBERT H.

BAIKIE, ROBERT T.

BAILEY, LESTER A.

BAIO, JOHN R.

BAIOCCHI, GERALYN M.

BAIOCCHI, GREGORY

BAIOCCHI, RENO J.

BAKA, MICHAEL

BAKER, CLINTON R.

BAKER, MICHAEL A.

BAKER, RICHARD M.

BAKSINSKI, EDWARD

BALCITIS, CHARLES

BALCITIS, SHARON L.

BALDREE, WILLIAM F.

BALDWIN, JOHN R.

BALDWIN, KEVIN P.

BALDWIN JR., MATTHEW P.

BALDWIN, JAMES

BALESH, ROBERT J.

BALICE, VITO M.

BALICKI, LYLIA

BALIMER, CHARLES E.

BALL, JOHN E.

BALL, KIRBY

BALLARD, MICHAEL

BALTAZAR, DAVID P.

BALZANO, FRANK

BANACH, LOUIS R.

BANASH, DENNIS

BANKS, CHARLES H.

BANKS, LEON

BANKS, STANLEY

BARA, JOSEPH C.

BARAJAS, RICHARD H.

BARAN, JEANETTE F.

BARAN, RUSSELL J.

BARANGO, ANTHONY

BARANOWSKI, CANDYCE

BARANOWSKI, GARY W.

BARHAM, FRED L.

BARILEAU, THOMAS

BARKOWSKI, EDWARD A.

BARNA, MELVIN C.

BARNAS, STEPHEN S.

F-3

BARNES, DONALD E.

BARNES, DONNA J.

BARNES, KELLY M.

BARNES, MAURICE

BARNES, ROBERT N.

BARNETT, THOMAS J.

BARNEY, JANICE D.

BARNHILL, GORDON A.

BARONAITIS, VIDA

BARRETT, HELEN I.

BARRETT, MARTIN M.

BARRETT, SUSAN M.

BARRETT, FREDRICK E.

BARRIENTOS, STEVE

BARRINS, PATRICK

BARRIOS, DAVID M.

BARRON, JACK J.

BARRON JR., WILLIAM P.

BARRY, DONALD J.

BARRY, DOROTHY R.

BARRY, TIMOTHY J.

BART, JAMES

BARTH, TERESE J.

BARTHEL, DONALD R.

BARTHEL, MICHAEL J.

BARTIK, ROBERT A.

BARTKOWIAK, JAMES

BARTKOWIAK, ROBERT P.

BARTMAN, RONALD

BARTOLI, LAWRENCE

BARTON, DONALD P.

BARTON JR., VINCENT T.

BARTOSIK, ALOYSIUS A.

BARTOSIK, JAMES E.

BARTOSZEWSKI, DANIEL D.

BARZYDLO, GEORGE E.

BASIL, GREGORY J.

BASSIE, RANDALL B.

BASTIE, JOSEPH P.

BATES, PHILLIP G.

BATES, TYRONE

BATES JR, CLIFTON A.

BATEY JR., CHESTER M.

BATKA, JAMES

BATOR, CARL F.

BATRICH, RICHARD J.

BATSON, BARRY

BATSON, JOHN E.

BATTAGLIA, CATHERINE

BATTAGLIA, JOSEPH A.

BATTALINI, ROBERT J.

BATTIATO, RAYMOND

-BATTISTELLA, JOHN

BAUER, JACK

BAUMANN, FRANK

BAUMANN, LEROY C.

BAUTISTA, ALFONSO

BAXTER, WILLIAM C.

BAY, ROGER

BEAL, CAROL A.

BEAL, MICHAEL D.

BEALE, EDWARD C.

BEAM, GERALD T.

BECKER, JEFFERY N.

BECKER, JOHN W.

BECKER, WARREN P.

BEDIA, ALFRED G.

BEDIA, LILIAN

BEDNARZ, RICHARD J.

BEESON, GREGORY

BEHLING, RONALD J.

BEHNKE, JOHN R.

BEHNKE, RAYMOND J.

BEILKE, JEFFERY R.

BELICE, MICHAEL J.

BELL, JOSEPH D.

BELL, KENNETH D.

BELL, KENNETH W.

BELL, MARVIN L.

BELL, RAYMOND A.

BELL, RONALD L.

BELLA, GREGORY A.

BELTRAN, ANTONIO

BEMBYNISTA, JOSEPH S.

BENAVIDES, RALPH

BENDEL, LORNEY J.

F-4

BENDIK, WALTER J.

BENDIXON, RICHARD E.

BENNETT, CHARLES J.

BENSON, ROBERT

BENVENUTI, JAMIE A.

BERECKIS, GEORGE J.

BERETA, WALTER S.

BERG, DENNIS T.

BERG, JAMES H.

BERGER, WALTER W.

BERGLIND, DAVID

BERNACKI, GREGORY E.

BERNARD, BRIAN G.

BERNERO, EDWARD

BERNHAUSER, ERNEST J.

BERNICHIO, ANTHONY M.

BERNICHIO, MARY L.

BERRY, JOHN E.

BERRY, JOHN P.

BERRY, WARREN F.

BERRYMAN, GEORGE W.

BERTRAM, DAVID M.

BERTUCA, ANTHONY F.

BERTUCCI, HENRY

BERTUCCI, PAUL

BESTEDA, CONSTANCE A.

BEUTEL, JAMES W.

BEYER, LAWRENCE

BEZENYEI, STEPHEN

BIALAS, MARYANN

BIALEK, FRANK A.

BIALEK, TIMOTHY J.

BIAMONTE, ANTHONY F.

BICKEL, RAYMOND

BICKNELL, GEORGE A.

BIEBEL, JAMES W.

BIEBEL, JOAN C.

BIEBEL, ROBERT V.

BIELECKI, LEE C.

BIELICKI, ANITA

BIELICKI, VINCENT

BIENIEK, FRANK J.

BIESIADA, WALTER E.

BIGGANE, PATRICk J.

BILINA, MICHAEL J.

BILLS, ROBERT C.

BILLUPS, ANDREW E.

BIRMINGHAM, MICHAEL W.

BITTENBINDER, JOHN J.

BIZARRO, JULIO J.

BLAA, RAYMOND

BLACK, CASSANDRA M.

BLACK, CLARENCE F.

BLACK, QUENTIN

BLACKMAN, JOHN E.

BLAKE, JOHN R.

BLAKE, RONALD G.

BLAKE, STEVEN

BLAKE, WILLIAM

BLAKELY, CAROL

BLANC, CURTIS

BLANCO, DEBORAH M.

BLANCO, ROBERT E.

BLAND, JAMES S.

BLANKS, KELVIN M.

BLAS, JOSEPH I.

BLASUCCI, MARK A.

BLASZCZYK, GERALD M.

BLEKE, DWIGHT L.

BLOMSTRAND, JAMES C.

BLOMSTRAND, THOMAS G.

BLUE SR., OTIS C.

BOBKO, MICHAEL P.

BOCARDO, MICHAEL

BOCCONCELLI, STEVE

BOCIAN, RICHARD J.

BOCIAN, DAVID E.

BOEHMER, ALLEN J.

BOEYKENS, MICHAEL N.

BOGUSIEWICZ, STEPHEN M.

BOISSO, JOSEPH W.

BOJAR, DANIEL R.

BOLGER, MICHAEL

BOLGER, OWEN

BOLGER, TIMOTHY J.

BOLIN, CRAIG M.

BOLL, MARTIN J.

BOLLIN, JAMES M.

BOLTON, DELWIN

BOND, CHARLES

BONDER, ANTHONY J.

BONDS, CURTIS B.

BONE, EDWARD

BONE, HAROLD

BONESS, ALAN L.

BONGIORNO, ANTHONY

BONK, GEORGE T.

BONK, JAMES R.

BONNER, THOMAS J.

BOOCK, JACK

BOOKER, HERBERT C.

BORATTO, JOHN F.

BORBELY, ANTHONY W.

BORG, PETER

BORGINI, CONSTANCE C.

BORIS, ROBERT S.

BORKOWSKI, ANDREW J.

BORZYCH, RICHARD R.

BOSCO, MICHAEL J.

BOSNYAK JR., STEPHEN F.

BOSO, RICHARD D.

BOSTON, LAMONTE J. |

BOTWINSKI, JOANNE L.

BOTZEK, PETER J.

BOUDREAU, DANIEL R.

BOUR, THOMAS A.

BOWDEN, WILLIAM H.

BOWEN, CHARLES R.

BOWEN, MICHELE M.

BOWERS, LARRY J.

BOWERY, CHARLES J.

BOWNESS, GEORGE W.

BOYCE, GREGORY J.

BOYCE, JAMES J.

BOYD, EDDIE L.

BOYD, EMMETT

BOYD, JACQUE

BOYD, JANET

BOYD, JOE A.

BOYD, LEBERT

BOYD, THOMAS E.

BOYKIN, MARGARET L.

BOYLE, JAMES E.

BOYLE, JOHN D.

BOYLE, LESLIE A.

BOYLE, PHILIP J.

BOYLE, RICHARD G.

BOYNES, MECHELL D.

BOZINOVICH, ROBERT

BRAASCH, MICHELLE M.

BRABAND, THOMAS A.

BRADLEY, BEVERLY

BRADLEY, CLARENCE

BRADLEY, VERNON J.

BRADSHAW, MICHAEL

BRADSHAW, MICHAEL F.

BRADSHAW JR., LEON M.

BRADY, BRUCE E.

BRADY, MATTHEW M.

BRADY, PHILIP J.

BRADY, RICHARD J.

BRAITHWAITE, KELLY A.

BRAMBORA, RONALD J.

BRANCH, JAMES E.

BRANCHER, ROBERT

BRANDENBURGER, CLYDE S.

BRANDON, MATTHEW

BRANDYS, ANTHONY S.

BRANICK, JAMES J.

BRANNIGAN, PATRICK J.

BRANNIGAN, ROBERT,

BRANNON JR., CLINT

BRANSFIELD, KATHLEEN A.

BRASIC, CARL J.

BRASWELL JR., WALLACE

BRAZIL, TIMOTHY

BREEN, ROBERT C.

BREEN, WILLIAM J.

BRENDAL, WALTER J.

BRENNAN, BERNARD J.

BRENNAN, MICHAEL

BRENNAN, ROBERT E.

BRENNER, GAYLE

BRESINGHAM, WILLIAM D.

BRESLIN, TERRENCE

BRESNAHAN, FRANK T.

BRESNAHAN, JOSEPH M.

BRESNAHAN, ROBERT T.

BRIGHT, MARCEL

BRINK, JOHN B.

BRINKMAN, ELIZABETH M.

BRINKMAN, JOHN F.

BRITT, STEPHEN J.

BRITT, WARREN F.

BRITTAIN, MICHAEL R.

BRIXY-ALDAY, RITA E.

BRODA, RAYMOND

BRODERICK, GIL

BRODERICK, JOHN A.

BROGAN, JAMES W.

BROGAN, JOSEPH O.

BROGAN, MICHAEL

BROGAN, PATRICK T.

BROGI, ROBERT J.

BRONKE, JACQUELINE L.

BRONSBERG, GREGORY

BROOKS, ANDREW J.

BROOKS, CHARLES L.

BROOKS JR., ERNEST

BROWDER, ARTHUR D.

BROWN, ALFRED

BROWN, AUBREY

BROWN, CAESAR J.

BROWN, DARNELL

BROWN, DARYN

BROWN, EDWARD L.

BROWN, EILEEN R.

BROWN, HENRY C.

BROWN, JAMES P.

BROWN, JAMES S.

BROWN, KENNETH C.

BROWN, KEVIN W.

BROWN, MANUEL L.

BROWN, MATTHEW T.

BROWN, MERLE E.

F-7

BROWN, MILLAUN M. BUE, PHILLP

BROWN, NORBERT A. BUGAJSKY, CHARLES J.

BROWN, NORMAN BUGARIN, MARTIN

BROWN, REGINA BUKOWSKI, KENNETH

BROWN, RICHARD J. BULAVA, GARY L.

BROWN, ROBERT E. BULGAJEWSKI, LESTER J.

BROWN, ROSLYN 0. BULLARD, JOHN D.

BROWN, SCOTT BULLOCK, ROBERT F.

BROWN, THOMAS M. BULT, BYRON E.

BROWN, THOMAS 0. BUNCH, EDWARD W.

BROWN, WAYMAN BUNK JR., ROBERT J.

BROWN, WILLIAM BURAUER, CAROLYN

BROWN, WILLIAM W. BURDETTE, RONALD

BROWN JR., JOHN H. BURG, PAUL V.

BROWN JR., GEORGE E. BURG, THOMAS J.

BROWN, HAROLD J. BURGESS, DONALD J.

BROWN, ROBERT BURKART, ROBERT E.

BROWN, SHIRLEY A. BERKE, BRIAN

BROWNE, DIANNE H. BERKE, CATHERINE M.

BROWNE, JAMES D. BERKE, DANIEL E.

BROWNE, ROBERT T. BERKE, JOHN D.

BROWNRIDGE, JOHN BERKE, JOHN J.

BRUCE, DAVID G. BERKE, LEROY N.

BRUCE SR., JAMES T. BERKE, MICHAEL F.

BRUECK, RICHARD A. BERKE, PATRICK E.

BRUEN, PATRICK J. BERKE, RICHARD P.

BRUGGER, PAUL BURKE JR., JOHN T.

BRUZAS, PAUL M. BURMISTRZ, PAMELA F.

BRYANT, PHILLIP R. BURNS, CHARLES E.

BUBACZ, STEPHEN T. BURNS, EDWARD J.

BUCK, BRUCE R. BURNS, GLORIA R.

BUCK, EDGAR BURNS, JAMES W.

BUCKENDAHL, CLIFFORD T. BURNS, JOHN T.

BUCKLES, ANTHONY D. BURNS, WILLIAM G.

BUCKLES, LESLIE B. BURNS, MICHAEL

BUCKLEY, ARTHUR BURRELL, GERALD

BUCKLEY, JERRY BURRELL, PEGGY

BUCKLEY, PAMELA J. BURTON, CRAIG E.

BUCKLEY, ROBERT J. BURTON, KAREN M.

BUCKNER, JUDITH E. BURTON, PHILLIP M.

BUCKNER JR., JAMES S. BURWELL, WILLIAM R.

BUDZ, CHRISTINE L. BUSCH, RICHARD, JR., E.

BUDZ, THOMAS E. BUSSE, WILLIAM S.

BUTKUS, JOANN D.

BUTLER, JAMES P.

BUTLER, DESMOND J.

BUTTERFIELD, THOMAS J.

BUTVILL, HOWARD P.

BUTZEN, KATHLEEN M.

BYERLY, JAYNE E.

BYKOWSKI, RAYMOND

BYNUM, MELVIN L.

BYRD, ANTHONY

BYRD, CHARLENE T.

BYRNE, ROBERT J.

BYRNE, THOMAS M.

BYRNE, MICHAEL J.

CABALLERO, RAYMOND

CABAY, ROBERT L.

CABRAL, ANNETTE K.

CABRERA, EVITA

CACCAVALE, BEN

CACIOPPO, LEONARD

CADDIGAN, DAVID E.

CADOGAN, GEORGE

CAESAR, LOUIS P.

CAJDA, JESSE J.

CALABRESE, WILLIAM J.

CALDERARO, DONALD J.

CALDERON, FRANCIS X.

CALDWELL, DAVID

CALHOUN, DONNELL

CALIENDO, RONALD J.

CALLAGHAN, ANTHONY

CALLAGHAN, BARBARA

CALLAGHAN, JOHN E.

CALLAGHAN, MICHAEL F.

CALLAGHAN, TERRENCE J.

CALLAGHAN, THOMAS J.

CALLAHAN, WILLIAM P.

CALLOZZO, PHILLIP A.

CAMARENA, JESSE

CAMERON, ELCERIA

CAMMLLARIE, PETER J.

CAMPANA, TIMOTHY J.

CAMPBELL, ALVIN

CAMPBELL, BRUCE D.

CAMPBELL, EDWARD

CAMPBELL, WAYNE C.

CAMPBELL, WILLIAM V.

CAMPION, WILLIAM E.

CAMPIONE, JACK M.

CANNIZZO, STEVEN J.

CANNON, JAMES

CANTERBURY, LARRY W.

CANTORE JR., DOMINIC F.

CAP, RICHARD

CAP, WALTER K.

CAPASSO, SAMUEL J.

CAPESIUS, JAMES J.

CAPESIUS, MICHAEL C.

CAPETILLO, JOSE M.

CAPORUSSO, NOEL T.

CAPPARELLI, JOHN T.

CAPPARELLI, TIMOTHY

CAPPETTO, DENNIS

CAPPETTO, FRED J.

CAPPETTO, JOSEPH R.

CAPPITELLI, PHILIP L.

CARBONARO, JOHN J.

CARBONE, PAUL M.

CARBONE JR., EDWARD

CARCERANO, KENNETH J.

CARDI, RICHARD A.

CARDON, PAUL

CAREY, GEORGE M.

CAREY, JOHN D.

CAREY, JOHN P.

CAREY, JOSEPH P.

CAREY, PATRICK R.

CARFORA, EDWARD

CARIDINE, EDDIE

CARIOSCIA, JOHN M.

CARLSON, LAWRENCE A.

CARLSON, ROBERT R.

CARLSON, ROLAND W.

CARLSON, SABINA

CARLSON, WAYNE G.

CARNEVALE, ELOISE M.

CARNEY, WILLIAM H.

CARO, BILL

CARONE, EUGENE F.

CARONE, JOSEPH P.

CARR, HENRY

CARRILLO, JAMES

CARRION, ROBERT

CARRIZALES, FELIX J.

CARROLL, EDWARD T.

CARROLL, GERARD J.

CARROLL, JAMES G.

CARROLL, JAMES T.

CARROLL, MICHAEL J.

CARROLL, MICHAEL P.

CARROLL, PAUL B.

CARROLL, RUSSELL R.

CARSON, KAREN A.

CARSON, MILTON K.

CARTAGENA, JOSE R.

CARTER, CORA

CARTER, FREDDIE

CARTER, JAMES R.

CARTER, JAMES W.

CARTER, KEITH B.

CARTER, RICHARD

CARTER JR., EARL

CARUSO, GEORGE T.

CARYNSKI, STEPHEN S.

CASASANTO, PAUL J.

CASCARANO, JAMES L.

CASEY, DANIEL E.

CASEY, JEROME W.

CASEY, LAWRENCE J.

CASEY, LYNN

CASEY, MICHAEL J.

CASON, RICHARD R.

CASPER JR., JOHN

CASSIDY, ARLYN J.

CASTANEDA, EFREN

CASTANEDA, MARIA E.

CASTELLANO, EDWARD B.

CASTO, STEPHEN

CASTREJON, ARTHUR L.

F-9

CASTRO, FRANK S.

CASTRO JR., ROGELIO

CATALANO, DAVID Y.

CATALANO, MICHAEL

CATENA, RICHARD C.

CATES, JENNIE E.

CATHERINE, BOBBIE J.

CAUBLE, RICHARD

CAWLEY, JOHN

CEGIELSKI, CRAIG R.

CEGIELSKI, MICHAEL J.

CEJA, JOSEPH N.

CEJA, MICHAEL

CELANI, SCOTT A.

CELANO, BEN

CELLA, JOHN A.

CELLA, LOUIS A.

CENTRACCHIO, DANIEL

CEPEDA, JERRY

CEPEDA JR., THOMAS

CERNAK, WILLIAM A.

CERNY, RICHARD A.

CERRENTANO, VINCENT P.

CERVEN, TIMOTHY E.

CERVENKA JR., RICHARD G.

CESARIO, LOUIS A.

CESARIO, NICKOLAS

CHAIDEZ, GISSELLA

CHALUPA, MARYANN

CHAMBERS, ANNE F.

CHAMBLISS, CHARLES

CHAN, CORY D.

CHAPARRO, ELOISA

CHAPLIN, JOHN R.

CHARLES, KENNETH R.

CHARNOTA, MICHAEL N.

CHASE, ALTON T.

CHASEN, MICHAEL

CHASEN, STEVEN D.

CHAVEZ-BOND, YOLANDA M.

CHENGARY, ALAN A.

CHENGARY, DENNIS J.

CHERNIK, ROBERT M.

CHERNIK, ROGER M.

CHERNIKOVICH, RICHARD S.

CHERRY II, CARL

CHEVALIER, JOSEPH

CHEVALIER, MICHAEL T.

CHEVALIER, SUZANNE

CHICZEWSKI, DEBORAH

CHICZEWSKI, JOSEPH T.

CHICZEWSKI, RALPH

CHIGAROS, GARY M.

CHILLA, DANIEL S.

CHIRELLO, STEVEN J.

CHMIEL, JAMES

CHOJNACKI, JOHN

CHORVATH, KENNETH E.

CHRISTIE, THOMAS W.

CHRISTOPHER, MARSHALL

CHRISTOPHER, WILLIAM

CHRISTOPHERSEN,

ANDREW R.

CHUCHMAN, THOMAS A.

CHUDY, EUGENE

CHURMA, ANDREW B.

CIAGLIA, NICK W.

CIBAS, ROBERT J.

CICCONE, RICHARD H.

CICHON, THOMAS

CICHY, THOMAS J.

CIEPP, KATHY

CIOCCI, VINCENT

CIOLLI, HENRY H.

CIOTUSZYNSKI, CHESTER

CIRAULO, THOMAS F.

CIRULLO, DONALD J.

CISCO JR., ARNOLD W.

CISZEK, JOHN R.

CISZEWSKI, JOHN J.

CLANCY, EDWARD B.

CLANCY, GERARD M.

CLANCY, PARTICK M.

CLANCY, WILLIAM J.

CLARK, DAVID E.

CLARK, HARRY A.

F-10

CLARK, HOWARD J.

CLARK, JAMES R.

CLARK, ROBERT J.

CLARK, TERRY

CLARK, THOMAS J.

CLARK, WILLIE J.

CLARK JR., OZIE

CLARKE, JAMES R.

CLARKE, PATRICIA S.

CLARKE, JAMES L.

CLAS, JUAN

CLAUNCH, JOANNA E.

CLAY, WILLIE L.

CLAYTON, MAURICE A.

CLEARY, ANNE

CLEMENTS, EDWARD M.

CLEVELAND, CHARLES

CLIFFORD, MICHAEL J.

CLIFFORD, WALTER J.

CLIFTON, MICHAEL D.

CLINE, PHYLLIS A.

CLINE, THOMAS J.

CLINTON, THOMAS

CLOHERTY, MARY ELLEN

COADY, DAVID J.

COBB, GILBERT J.

COBB JR., WILLIE C.

COCHRAN, FREDDIE

COCKRUM, RONALD K.

CODE, THOMAS

CODINA, JOSEPH R.

COFFEY, THOMAS G.

COGHLAN, JOHN

COHEN, STEVEN P.

COLE, CRAIG D.

COLE, DENSEY

COLE, JON W.

COLE, LAURA F.

COLE JR., HARVEY M.

COLELLA, ROBERT J.

COLEMAN, ALBERTHA

COLEMAN, NATALEEN V.

COLEMAN, RONALD W.

COLEMAN, TRACEY L.

COLEMAN, II, SIDNEY D.

COLLIER, RICHARD L.

COLLIER, WALTER III

COLLINS, CAROLE K.

COLLINS, EARL

COLLINS, ELEANOR

COLLINS, HARRY J.

COLLINS, JOHN P.

COLLINS, JOHN T.

COLLINS, MARY L.

COLLINS, MICHAEL P.

COLLINS, MICHAEL S.

COLLINS, NORA E.

COLLINS, PATRICK A.

COLLINS, PHILLIP P.

COLLINS, ROBERT

COLLINS, THOMAS J.

COLLINS, TYRONE M.

COLLINS, WALTER H.

COLON, MICHAEL A.

COLONNA, GUIDO J.

COLVIN, PATRICK J.

COLYAR, RONALD

COMPTON, PAMELA M.

CONCKUS, CHARLES J.

CONDON, EUGENE P.

CONDREVA, RONALD E.

CONKLIN, BILLY D.

CONKLIN, JANICE D.

CONLEY, CHARLES G.

CONLEY, JANET K.

CONLEY, MARY E.

CONLEY, MICHAEL J.

CONLIN, WILLIAM J.

CONNELLY, CAROLINE M.

CONNELLY, DENNIS J.

CONNELLY JR., JOHN T.

CONNER, DONALD F.

CONNOLLY, NANCY J.

CONNOLLY, PATRICK

CONNOR, WILLIAM C.

CONNORS, WILLIAM J.

F-11

CONRATH, GREGORY M.

CONROY, JOHN J.

CONROY, MARTIN N.

CONROY, PATRICK J.

CONSIDINE, GEORGE B.

CONSTANTINO, FRANK

CONTANT, RICHARD J.

CONTINO, JAMES

CONTRERAS, FELIX

CONTRERAS, JOSIE G.

CONWAY, CATHERINE A.

CONWAY, JOHN J.

CONWAY, KAREN D.

CONWELL, HUGH L.

CONWELL, PHILIP A.

COOK, DEWEY

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