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State ex rel. Hoyle v. City of Grant Pass

Court of Appeals of Oregon

May 22, 2019

STATE ex rel Val HOYLE, Commissioner of the Oregon Bureau of Labor and Industries, Plaintiff-Appellant,
v.
CITY OF GRANTS PASS, Defendant-Respondent.

          Argued and submitted October 26, 2017

          Josephine County Circuit Court 15CV15801; A163244 Pat Wolke, Judge.

          Jordan R. Silk, Assistant Attorney General, argued the cause for appellant. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Gregory A. Chaimov argued the cause for respondent. Also on the brief was Davis Wright Tremaine LLP.

          Chad A. Jacobs, Ashley O. Driscoll, Beery, Elsner & Hammond, LLP, Daniel Rowan, and Bullard Law filed the brief amicus curiae for League of Oregon Cities, Special Districts Association of Oregon, and Oregon Fire Chiefs Association.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary: The state appeals a circuit court judgment dismissing a complaint fled by the Bureau of Labor and Industries (BOLI) in an enforcement action against the City of Grants Pass (city). BOLI sought payment of overtime wages on behalf of a group of current and former freighters employed by the city, arguing that ORS 652.060 and ORS 652.070 required the city to pay additional overtime. After a stipulated-facts trial, the trial court concluded that the city was protected by the "safe harbor" provision of ORS 652.060(1)(b), which provides that an employer "shall be deemed to have complied with [ORS 652.060] and [297 Or.App. 649] ORS 652.070 if the hours of regular duty required of freighters employed by it average not more than 56 hours a week over each quarter of the [employer's] fiscal year." The state argues that the trial court misinterpreted that provision and therefore erred in dismissing BOLI's complaint. Held: In light of the available legislative history and the statute's apparent purpose, the safe-harbor provision of ORS 652.060(1)(b) depends on the average weekly hours worked by a department's freighters as a whole, not the average weekly hours of any individual freighters. Because the city did not require its freighters, collectively, to work more than an average of 56 hours per week in any quarter, the trial court did not err in dismissing the complaint.

         Affirmed.

         [297 Or.App. 650] DEHOOG, P. J.

         This is the second appeal in a dispute over firefighters' entitlement to overtime pay under ORS 652.060 to 652.080. In the prior appeal, we affirmed a declaratory ruling by the Bureau of Labor and Industries (BOLI), which held that the City of Grants Pass (defendant or the city) was required, despite a union contract to the contrary, to comply with ORS 652.080's requirement that "authorized vacation or sick leave time shall be considered as time on regular duty" when calculating firefighters' entitlement to overtime pay. IAFF, Local 3564 v. City of Grants Pass, 262 Or.App. 657, 326 P.3d 1214 (2014). Following our decision, the city provided BOLI with an accounting of what the city described as its "maximum possible obligation due" to its firefighters for overtime hours worked between 2010 and 2014. BOLI rejected that accounting, disputing the city's interpretation of ORS 652.060 and ORS 652.070 and its resulting calculation of its firefighters' average work hours. On behalf of those firefighters, BOLI initiated an enforcement action in circuit court, seeking payment of overtime wages, penalty wages for the city's failure to pay overtime, and a declaration regarding the proper method of calculating how much overtime was due any firefighter owed overtime. Following a stipulated facts trial, however, the trial court concluded that ORS 652.060 and ORS 652.070 did not entitle any of the city's firefighters to additional overtime pay; accordingly, the court dismissed BOLI's complaint in its entirety, without reaching BOLI's contention regarding the proper means of calculating any overtime that may be due.[1]

         BOLI appeals, arguing that the trial court erroneously construed those statutes and that, even if the court's construction is correct, the city is nonetheless obligated to pay at least some of its firefighters overtime and we should determine how that obligation is to be calculated. For the reasons that follow, we conclude that the trial court's understanding of ORS 652.060 and ORS 652.070 was not [297 Or.App. 651] erroneous. We further conclude that the trial court implicitly found that the city had not required any of its firefighters to work hours that would qualify them for overtime under a correct interpretation of those laws, and BOLI does not challenge that factual finding on appeal.[2] As a result, we, like the trial court, do not address BOLI's argument regarding the proper means of calculating any overtime that may come due, and, accordingly, affirm.

         Before addressing the parties' arguments, we provide a brief overview of the statutes at issue, which govern workweek limitations and overtime requirements for full-time firefighters. As the parties acknowledge, those statutes-like firefighter scheduling practices in general- depart significantly from the workweek and overtime requirements common to many other occupations. First, while many workers are entitled to overtime pay if they work more than 40 hours a week, ORS 652.060(1) establishes a regular-duty workweek of 72 hours for fire departments that employ three or fewer full-time firefighters and a 56-hour workweek for fire departments with four or more full-time firefighters.[3] Second, despite those seemingly [297 Or.App. 652] absolute thresholds to overtime pay, ORS 652.060(1) provides fire departments with a "safe harbor," under which an employer is "deemed to have complied with [ORS 652.060(1)] and ORS 652.070 if the hours of regular duty required of firefighters employed by it average not more than [72 or 56] hours a week over each quarter of the fiscal year." (Emphasis added.)

         In turn, ORS 652.070(1) requires employers to "put into effect and maintain a schedule of working hours" that complies with ORS 652.060.[4] If an employer fails to do so, it must pay overtime "to every regularly employed firefighter as additional pay for every hour of regular duty required of and performed by the firefighter over and above the average hours established by ORS 652.060." Finally, ORS 652.080, the statute at issue in our earlier decision, IAFF, Local 3564, 262 Or.App. at 659, provides for the treatment of authorized vacation or sick leave time as time spent on regular duty.[5]

         [297 Or.App. 653] The present dispute centers on the meaning of ORS 652.060(1)(b)'s safe harbor provision, which applies to defendant as a city employer with four or more full-time firefighters. As noted, the safe harbor provision provides that "any affected [employer] shall be deemed to have complied with this paragraph and ORS 652.070 if the hours of regular duty required of firefighters employed by it average not more than 56 hours a week over each quarter of the fiscal year of the [employer]." At a stipulated facts trial on BOLI's complaint, the city argued that, because the legislature had used the plural term "firefighters" in the safe harbor provision, it must have intended average hours to be calculated collectively across all of a department's firefighters, rather than on an individual basis for each firefighter.[6] That is, an employer would not be required to pay overtime for a particular quarter if, on average, its firefighters were not required to work more than 56 hours per week, even if one or more individual firefighters were required to work an average of more than 56 hours per week over that period. BOLI, on the other hand, argued that the safe harbor provision operates at the level of individual firefighters employed by a department, such that any firefighter required to work an average of more than 56 hours per week over the course of a quarter would qualify for overtime pay. According to BOLI, the legislature could not reasonably have intended for a firefighter whose average workweek exceeded 56 hours to be ineligible for overtime merely because his or her coworkers averaged shorter workweeks.

         Ultimately, the trial court adopted the city's interpretation, concluding that, under ORS 652.060(lXb), the phrase "firefighters employed by it" refers to all of a department's firefighters as a whole, and not to individual firefighters within the department. Because the trial court [297 Or.App. 654] apparently understood the evidence to show that the city had not required its firefighters, collectively, to work an average of more than 56 hours per week in any quarter, the court dismissed with prejudice BOLI's first and second claims for relief (seeking payment of overtime and penalty wages) and concluded that BOLI was "not entitled to the declaration sought" in its third claim for relief.[7] BOLI now appeals those rulings, and both parties reprise the arguments that they made at trial.

         Where, as here, the resolution of a dispute depends upon the meaning of a statute, our "paramount goal" is to determine what the legislature intended the statute to mean. State v. Gaines, 346 Or. 160, 171, 206 P.3d 1042 (2009). In conducting that inquiry, we start by examining the best evidence of legislative intent-the text and context of the statute itself, id.-and apply "rules of construction of the statutory text that bear directly on how to read the text." PGE v. Bureau of Labor and Industries, 317 Or. 606, 611, 859 P.2d 1143 (1993). Furthermore, to the extent that it may be helpful, we will consider any available legislative history, and, if the intended meaning of a statute remains unclear, we may resort to "general maxims of statutory construction." Gaines, 346 Or at 172.

         Beginning with the text of the safe harbor provision, BOLI argues that the legislature's use there of the plural term "firefighters" is likely a simple reflection of "the unremarkable reality that [typically] more than one firefighter works in a fire department, and thus refers to the individual average hours of [each of] those multiple firefighters," rather than a cumulative average across all firefighters within a department. BOLI acknowledges that no rule of grammar would compel either its or the city's reading of "firefighters." Nor would any statutory rule of construction. In fact, one seemingly applicable such rule, ORS 174.127(1), further obscures the legislature's objective in choosing the plural form by instructing us that, generally speaking, the [297 Or.App. 655] statutory use of "[t]he singular number may include the plural and the plural number, the singular."[8]

         BOLI argues, however, that the context of the safe harbor provision resolves that uncertainty and compels us to read the term "firefighters" in that provision as referring to individual firefighters. BOLI emphasizes that the text surrounding the safe harbor focuses on individual workers. For example, the basic workweek limitation in ORS 652.060(1) provides that "[n]operson employed on a full-time basis as a firefighter *** shall be required to be on regular duty *** more than [56 or 72] hours a week." (Emphasis added.) Similarly, the remedial provision in ORS 652.070(1) requires employers to pay overtime wages to "every regularly employed firefighter" for excess hours "required of and performed by ...


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