time off in lieu of monetary overtime pay. Nevertheless, as of the effective date of the FLSA's amendment, the District proceeded to apply D.C. Code § 1-612.3(d) to plaintiffs, awarding them compensatory time off in lieu of monetary overtime compensation. The District did so without negotiating or entering into any agreement with plaintiffs' bargaining representative. Only upon the expiration of the 1986-87 Agreement did the parties enter into such bargaining. Indeed, the collective bargaining agreement executed to take effect when the 1986-87 Agreement expired expressly authorized the payment of compensatory time off.
For the foregoing reasons, plaintiffs contend that they were entitled to monetary pay, rather than compensatory time off, for overtime hours accruing from April 15, 1986 to October 1, 1987. Hence, plaintiffs argue, the District contravened the FLSA when it awarded officers compensatory time in lieu of monetary payments during this period. In response, the District claims that the 1986-87 Agreement in fact permitted substitution of compensatory time off for monetary payments. The District further defends its policy on the basis of a "tacit understanding" between the parties and its "past practice" of awarding officers compensatory time off rather than monetary payments. Defendant's Memorandum in Opposition to Partial Summary Judgment at 2-4.
In construing the FLSA's amended overtime provisions, this court is guided by the now-familiar framework enunciated in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). We note, first, that the language of the FLSA's amended overtime provision could not be more plain, precise, and devoid of ambiguity. As quoted above, it provides that "[a] public agency may provide compensatory time . . . only  pursuant to  applicable provision of a collective bargaining agreement, memorandum of understanding, or any other agreement between the public agency and representatives of such employees." 29 U.S.C. § 207(o). In the case of employees covered by a bargaining agreement, then, the FLSA requires that an arrangement such as that adopted by the District be ratified by the employees' representative and be pursuant to a collective bargaining agreement.
The intent underlying the amended language is also reinforced by unequivocal language in the FLSA's legislative history. The Senate Report to the 1985 amendments provides that "the use of comp time in lieu of pay must be pursuant to some form of agreement or understanding between the employer and employee, reached prior to the performance of the work," and adds that "where employees have a recognized representative, the agreement or understanding must be between that representative and the employer . . . ." S. Rep. No. 99-159, 99th Cong., 1st Sess. 10 (1985). The House Committee Report contains indistinguishable language. H. Rep. No. 99-331, 99th Cong., 1st Sess. 20 (1985).
Moreover, the Department of Labor's Wage and Hour Division, the body entrusted with the task of issuing regulations pursuant to the FLSA, has endorsed plaintiffs' interpretation of the overtime provisions while expressly rejecting that proposed by the District. In a concise opinion, the Department squarely rejected the claim of the National League of Cities that no agreement of understanding vis-a-vis compensatory time is required with respect to employees hired prior to April 15, 1986 -- the effective date of the FLSA's overtime amendments -- provided that the agency had a regular practice in effect prior to that date. 52 Fed. Reg. 2014 (1987). The Department recognized, as the statute makes clear and as the House and Senate Reports affirm, that the "regular practice" exception applies only to those employees not covered by a collective bargaining agreement or similar understanding. Id. This interpretation, offered by the Department entrusted with issuing contemporaneous constructions of FLSA provisions, is entitled to considerable deference from this court. National Treasury Employees Union v. FLRA, 223 U.S. App. D.C. 364, 691 F.2d 553 (D.C. Cir. 1982); Atkins v. General Motors Corp., 701 F.2d 1124, 1128 (5th Cir. 1983) (administrator's interpretation of FLSA merits "substantial deference"). This interpretation of the FLSA's overtime provisions comports with the overall policy goal of federal labor laws, that being to foster industrial peace through collective bargaining arrangements. Carey v. Westinghouse Electric Corp., 375 U.S. 261, 265, 11 L. Ed. 2d 320, 84 S. Ct. 401 (1964); Bloom v. NLRB, 196 U.S. App. D.C. 1, 603 F.2d 1015 (D.C. Cir. 1979) (National Labor Relations Act); National Treasury Employees Union v. FLRA, 258 U.S. App. D.C. 176, 810 F.2d 295 (D.C. Cir. 1987) (Federal Service Labor-Management Relations Act).
The District's response to this clear congressional mandate is essentially threefold. First, it contends that it made a "good faith" effort to comply with the FLSA. This argument is unavailing, since good faith is not a defense to a violation of the FLSA's overtime provisions. Donovan v. Carls Drug Co., 703 F.2d at 652 ("There is no separate requirement that employers know that they have violated a specific provision of the Act because such a rule would encourage employers to remain ignorant of FLSA rather than energetically to comply with it"); Retail Store Employees Union Local 400 v. Drug Fair-Community Drug Co., 307 F. Supp. 473, 479 (D.D.C. 1969) (good faith reliance "does not exonerate Drug Fair from liability for overtime compensation"); Lerwill v. Inflight Services, Inc., 379 F. Supp. 690, 696 (N.D. Cal. 1974) ("good faith does not justify the wrongful withholding by an employer of overtime pay"), aff'd on other grounds, 582 F.2d 507 (9th Cir. 1978).
Second, the District claims that its conduct should be upheld as consistent with its routine practice, begun before enactment of the 1985 FLSA amendments, of substituting compensatory time off for monetary overtime payments. This argument is equally unpersuasive. First, the District does not even hint that plaintiffs' certified bargaining representative acceded to this "tacit understanding," as he must under the FLSA's amended overtime provisions. 29 U.S.C. § 207(o). Moreover, the "regular practices" exception to the FLSA overtime provisions applies only in the context of employees who are not subject to a collective bargaining agreement or other understanding ratified by the employees' bargaining representative. 29 U.S.C. § 207(o)(2). Since plaintiffs and the District were mutually bound by such a bargaining agreement, the District's prior practices and the parties' "tacit understanding" are relevant only insofar as they are reflected in, and consistent with, the agreement then in effect.
Finally, the District contends that the 1986-87 Agreement did in fact provide for compensatory time off in lieu of monetary payments. The District refers to an oblique statement in a portion of the 1986-87 Agreement entitled "Court Time Pay," which provides that "The Department's current policy will remain in effect." Agreement, Article 31. The parties apparently agree that this provision authorizes the District to provide compensatory time off in lieu of monetary payments for overtime hours expended by officers for certain court appearances. See Plaintiffs' Reply at 2 (collective bargaining agreement does not authorize District's overtime policy, "except for certain court appearances"). In light of this provision, the court concludes that the District could, consistent with the FLSA, substitute time off for overtime pay, but only in the narrowly defined circumstances provided therein. This provision cannot be understood, as defendants urge, to sanction the payment of compensatory time off for service hours not expended in court appearances. To adopt such an interpretation would not only ignore the limited context in which the Agreement sanctioned such action, but would also violate the letter and spirit of the FLSA's overtime provisions, which require that any use of compensatory time off be "pursuant to" an agreement.
In short, this court can scarcely imagine a scenario in which public policy more clearly conflicts with federal statutory intent and purpose. The FLSA's amended overtime rules provide, in no uncertain terms, that public agencies are free to "pay" compensatory time off in lieu of monetary benefits, but may do so only if they bargain with their employees for such arrangements. There is no dispute here that plaintiffs were covered by a collective bargaining agreement, that the agreement did not authorize payment of compensatory time off for all overtime hours, and that the District did not implement its policy pursuant to an agreement reached with plaintiffs' certified representative. We need not decide whether application of D.C. Code § 1-612.3(d) in other contexts would also violate the FLSA. It is sufficient for present purposes to observe that as a direct result of District policy and practice, plaintiffs were deprived of monetary compensation to which they were legally entitled under the FLSA's overtime provisions.
For the foregoing reasons, we find that the District has failed to establish that its police sergeants are exempt from the FLSA's overtime provisions. In addition, the District contravened the FLSA's overtime provisions when it "paid" compensatory time off in lieu of monetary overtime benefits from April 15, 1986 to October 1, 1987, in the absence of a provision in the parties' collective bargaining agreement or another agreement providing for such substitution. The District was acting within its means, however, when it substituted compensatory time off for overtime hours expended by plaintiffs for court appearances. We have evaluated all of the District's arguments on each of these points, and consider those not expressly addressed above to be without merit. For these reasons, plaintiff's motion for partial summary judgment must be granted in part, and defendant's motion for partial summary judgment must be denied. The pivotal remaining issue in this case would appear to be the precise amount of overtime pay to which plaintiffs are entitled. This matter can be addressed at the parties' next status conference.
An order consistent with the foregoing has been entered this day.
Date: June 21, 1988