BENTON - Senior U.S. District Judge Phil Gilbert denied a motion to reconsider an order in favor of St. Clair County emergency dispatchers, comparing it to a magic trick.
“While the county’s counsel may be so well versed in labor law and wage and hour law that a ‘Voila’ argument may be persuasive to them, it was not to the court,” he wrote.
Attorney Garrett Hoerner was St. Clair County's counsel.
Bradley Miller, Kayla Kilpatrick and Blake Bumann sued the county last July on behalf of themselves and others.
Their counsel Philip Oliphant of Memphis claimed the county didn’t pay time and a half for hours beyond 40 in a week if they didn’t work 80 hours in two weeks.
He claimed they worked 12 hours three to five times a week resulting in back to back weeks with more than 40 hours and fewer than 40.
Hoerner moved to dismiss the complaint, claiming the county’s payment practices for alternate schedules comported with federal and state labor standards.
He claimed plaintiffs belonged to a union and state law didn’t apply where a union agreed to an alternate shift schedule.
Gilbert ruled in February that the county must defend the complaint.
He found enough facts to paint a picture of regular overtime violations.
“It is clear to this court what the plaintiffs are claiming the emergency management administration did wrong and how it accomplished that wrong,” he wrote.
Gilbert found the claim didn’t require construction of the union’s bargaining agreement and plaintiffs didn’t allege violation of the agreement.
Miller alleged he worked 48 hours one week and 36 the next and wasn’t paid for the extra eight hours in the first week.
Bumann alleged he typically worked the same schedule.
Kilpatrick alleged she regularly worked shifts exceeding 40 hours a week.
Hoerner moved to reconsider in March, making his case in a single sentence.
He claimed the county’s practices comported with law because plaintiffs were "employed not more than 2,240 hours and not less than 1,840 or 46 weeks at the normal number of hours per week but not less than 30 per week and not more than 2,080 hours of for which they received compensation for all hours guaranteed or worked at rates not less than those applicable under the collective bargaining agreement to the work performed, and for all hours in excess of the guaranty which were in excess of the applicable maximum under subsection (a) or 2,080 at rates not less than one and one half times the regular rate."
Oliphant responded, “Nowhere in this breathtakingly long sentence, or elsewhere, is any mention of where in the collective bargaining agreement any such limits are mentioned.”
He claimed the county assiduously avoided the fact that a bargaining agreement on overtime must meet exacting standards.
He added that the county had no such standards and didn’t argue otherwise.
Hoerner replied, “The undisputed fact remains that the Fraternal Order of Police labor counsel requested and received a certification of representative as bona fide under Section 7(b) of the Fair Labor Standards Act of 1938 from the National Labor Relations Board, the obvious reason for which was to institute the alternate shift schedule contained in Section 4.01 of the collective bargaining agreements as expressly contemplated by Section 207(b)(2) of the Fair Labor Standards Act and correspondingly, Section 4(a)(2)(J) of the Illinois minimum wage law.”
Gilbert found the county complained that he failed to consider an argument it presented.
“Because St. Clair County failed to make and properly support its argument in the first place, the court made no error in failing to address it more thoroughly,” he wrote.
He found the argument consisted of quoting a very wordy section of statute, “and then leaving it to the court to conclude, voila, the policy qualifies.”
On May 13, he conditionally certified a class action going back three years.
Gilbert denied a motion of plaintiffs to compel the county to provide names and contact information for eligible telecommunicators.
He found he'd let them seek what they want through discovery and he’d compel production only if the county’s responses are not sufficient.