Unpublished Disposition, 881 F.2d 1083 (9th Cir. 1989)

MEMORANDUM^* 

Douglas Helms appeals from the district court's grant of summary judgment against him in his suit seeking payment of overtime wages under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. The district court concluded that Helm's suit must be dismissed under the "homeworker doctrine". We agree and affirm.

Helms worked for Washington Water Power (WWP) from 1962 until he retired in 1986. From 1971 until his retirement, Helms worked as the journeyman operator of the Bunker Hill substation in Kellogg, Idaho. Bunker Hill is an electrical substation staffed by a single employee, Helms. Helms lived in rent-free accommodations next to the Bunker Hill station. Helms was a member of the International Brotherhood of Electrical Workers and was employed pursuant to a collective bargaining agreement (CBA) negotiated between his union and WWP. Pursuant to the CBA, Helms was paid for forty hours of work for the daytime hours regardless of whether he worked fewer than forty daytime hours. Helms' job required him to work some hours at the substation between the hours of 7:00 a.m. and 5:00 p.m. Helms was "on-call" between the hours of 5:00 p.m. and 7:00 a.m. His on-call duties required him to answer and respond to various emergency calls and alarms regarding power service in the area covered by his substation. Helms was paid for all overtime hours which he submitted to WWP.

Helms contends that under the FLSA he is entitled to payment for working 24 hours per day because he so frequently responded to telephone calls and alarms that he was, in effect, always working. We disagree and believe that the homeworker doctrine squarely controls the disposition of this appeal.

The district court correctly applied the homeworker doctrine to this case. The guideline for interpreting this doctrine states:

Employees residing on employer's premises or working at home.

An employee who resides on his employer's premises on a permanent basis or for extended periods of time is not considered as working all the time he is on the premises. Ordinarily he may engage in normal private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when he may leave the premises for purposes of his own. It is, of course, difficult to determine the exact hours worked under these circumstances and any reasonable agreement of the parties which takes into consideration all of the pertinent facts will be accepted. This rule would apply, for example, to the pumper of a stripper well who resides on the premises of his employer and also to a telephone switchboard operator who has the switchboard in her own home.

29 C.F.R. Sec. 785.23. See also Halferty v. Pulse Drug Co., Inc., 864 F.2d 1185, 1190-91 (5th Cir. 1989) (applying homeworker doctrine as matter of law).

The fact that the home is also the work site, as is true in this case, is an important factor in finding that round-the-clock compensation is not contemplated by the FLSA. Rural Fire Protection Company v. Hepp, 366 F.2d 355, 360 (9th Cir. 1966); General Electric Company v. Porter, 208 F.2d 805 (9th Cir. 1953). Accord Kelly v. Hines-Rinaldi Funeral Home, Inc., 847 F.2d 147, 148 (4th Cir. 1988) (answering phone in one's own residence between midnight and 6:30 a.m. and infrequently picking up corpses in middle of night 3-4 times per month, time not covered by FLSA); Brock v. El Paso Natural Gas Co., 826 F.2d 369 (5th Cir. 1987) (nearly identical case holding round-the-clock compensation barred by the homeworker doctrine).

The existence of an agreement between an employer and an employee apportioning compensable time from noncompensable time is of great significance in deciding cases to which this doctrine might apply. If a reasonable agreement exists, it is given great weight. Hepp, 366 F.2d at 360; El Paso Natural Gas, 826 F.2d at 374; Rousseau v. Teledyne Movible Offshore, Inc., 805 F.2d 1245, 1248 (5th Cir. 1986); Allen v. Atlantic Richfield Co., 724 F.2d 1131, 1136 (5th Cir. 1984) (court upheld jury verdict that time was not compensable and noted importance of agreement to that effect).

In this case the parties do not dispute that there is a collective bargaining agreement which regulates the pay of one-person substations. The agreement allows for forty hours of pay regardless of whether the employee actually works forty hours. Nor does Helms dispute that he was paid for each hour of overtime which he submitted for payment. Helms contends that the district court erred because a material question of fact exists as to the existence of an agreement. We disagree.

With respect to the agreement, Helms' Rule 56 materials contest only the specific provisions of how much "overtime" he was to claim under the terms of the CBA; the existence of the CBA apportioning wages for one-person electrical substation operators is not contested. We conclude that the question of fact pertaining to the precise terms of his overtime compensation is not material¹ .

Helms was paid for all overtime hours submitted for payment. Helms was clearly bound to the terms of the CBA. The CBA was the product of bargaining between his union and the employer, parties familiar with the requirements of the FLSA. That agreement was reasonable. Time spent responding to alarms and telephone calls must necessarily vary, depending upon the weather, time of year, etc. The parties to the CBA were well aware of the unpredictable demands placed upon one-person substation operators. Their reasonable bargaining agreement on the compensation to be paid for such unpredictable work is entitled to be upheld under the homeworker doctrine.

Accordingly, after de novo review, we affirm the district court's grant of summary judgment.

AFFIRMED.