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Court of Appeal, Fifth District, California.

MADERA POLICE OFFICERS' ASSOCIATION et al., Plaintiffs and Appellants, v. CITY OF MADERA et al., Defendants and Respondents.

Civ. 6826 (F000314).

Decided: September 02, 1983

Carroll, Burdick & McDonough, Christopher D. Burdick and Philip M. Miller, San Francisco, Cal., for plaintiffs and appellants. Axel E. Christiansen, Madera, for defendants and respondents.


Plaintiffs, the Madera Police Officers' Association, James Long, Thelma Marvin and John Kunkle (officers and members of the association), sued defendants City of Madera;  City Council of Madera;  Robert Kelley, City Manager;  and Gordon Skeels, Chief of Police, for overtime wages on behalf of all employees of the City of Madera Police Department employed in the job classifications of police sergeant, police officer and police dispatcher.   Following a court trial, judgment was entered for defendants.   Plaintiffs appeal.

The issue on appeal is whether the now uncompensated meal period in each employee's shift is compensable work time.


At all times pertinent to this proceeding there have been sequential memoranda of understanding in effect between plaintiff association, on behalf of its members, and defendant City of Madera, except for 1976–1977 when no memorandum of understanding was signed.   The memoranda of understanding cover working conditions, including wages and hours, but do not cover the classification of meal periods, called “Code 7” time, during which the individual officers must advise their supervising officer where they can be reached for recall to duty if needed.   They are also subject to certain other restrictions by regulation and administrative practice, to be discussed.   The individual employees on whose behalf the suit was brought serve a daily tour of duty of 8 hours and 30 minutes, including the meal break of 30 minutes.1  All are permitted one “coffee break” in each half of the shift, which is compensable time.   The 8-hour and 30-minute tour of duty includes 15 minutes before the scheduled shift for briefing and 15 minutes at the end of the shift for debriefing and report writing.

During their “Code 7” or meal periods, police officers are required to advise their supervisor or “communications” where they can be located, including the telephone number, if any.   They are subject to immediate recall during this period.   The “call-in” and location requirements are not only for personnel control but are intended for the benefit of the officer to the extent that an officer might encounter some difficulty while on “Code 7” time and the failure to call in when expected would alert the department to the potential problem.

Other than the obvious practical restrictions inherent in a 30-minute lunch period, there are no restrictions on the place where the officers take their meal break.   The officer is free to eat at home or at the house of a friend;  he can eat at the police station or in his car;  he may eat in a public restaurant.   The 30-minute period is calculated from the time the officer reports to the supervisor that he is beginning his “Code 7” period and his location;  therefore, an officer who drives home to eat begins his meal break when he reaches his home and calls in.   The time at which each officer can commence his “Code 7” time is decided by the supervisor on a daily basis;  there is no fixed time for the meal break.

To prevent any possibility of implicit coercion or intimidation, the police officers are not to transact personal business while in their uniforms.   No officer is precluded, however, from taking off his uniform and conducting personal business on his meal break within the allotted 30 minutes.   An officer who elects to eat lunch in a public restaurant while attired in his uniform is expected to respond courteously to citizen inquiries.   The officer may, however, request the citizen to defer his request until the officer has finished his meal.   An officer is expected to respond to a crime being committed in his presence whether he is in or out of uniform and whether he is on duty, on a meal break, or off duty.

Police dispatchers work in teams of two per shift.   During the day shift, a dispatcher is not restricted in his or her use of “Code 7” or meal time except that a dispatcher must leave word with the supervisor or “communications” where the dispatcher can be reached.   On the swing and graveyard shifts, the dispatchers may not leave the building, although they are permitted a 30-minute meal break.

Both police officers and dispatchers are entitled to overtime if they are actually called back to work during their “Code 7” periods, and they may take the overtime in additional salary (at time and one-half) or in compensatory time off.   As a general practice, attempts are made to afford an officer who is called into service on his “Code 7” time additional time on that day to complete his meal break.

The trial court determined the “Code 7” time of both the police officers and dispatchers was not work time for which they were entitled to compensation.   It found it unnecessary, therefore, to consider or to make findings on the other issues raised by defendants.


I. Did the trial court err in concluding that police officers' “Code 7” time is not “work time” under the City of Madera's rules and regulations?

Following the trial court's announcement of its intended decision in favor of defendants, plaintiffs requested findings of fact and conclusions of law.   The findings are set forth below.2  Plaintiffs do not challenge the findings except they contend the purported finding that the restrictions imposed upon officers and dispatchers while at lunch do not entitle plaintiffs to additional compensation is a conclusion of law, not a finding of fact.

Plaintiffs argue that as a matter of law the “Code 7” period (lunch break) is work time for purposes of the applicable municipal regulations and therefore this court must independently decide this question of law.   To support this contention, plaintiffs point to the holdings in Shoban v. Board of Trustees (1969) 276 Cal.App.2d 534, 541, 81 Cal.Rptr. 112 (that a reviewing court is not bound by the trial court's determination of the proper application of an administrative regulation) and Morrison v. State Board of Education (1969) 1 Cal.3d 214, 238, 82 Cal.Rptr. 175, 461 P.2d 375 (that the ultimate conclusion to be drawn from undisputed facts is a question of law for an appellate court).

Plaintiffs' reliance on Shoban and Morrison for their proposition that this court's review of the nature of “Code 7” time is independent of that of the trial court misinterprets the elements of the judgment in the instant case.   Admittedly, the trial court's determination that the restrictions on the officers and dispatchers during their lunch period does not entitle them to compensation for that period is a conclusion of law.  (See Board of Education v. Jack M. (1977) 19 Cal.3d 691, 698, fn. 3, 139 Cal.Rptr. 700, 566 P.2d 602.)   However, there are findings in that same paragraph 5 and in paragraphs 3 and 4 which are unchallenged findings of fact entitled to acceptance on this appeal.   Moreover, “A judgment or order of the lower court is presumed correct.   All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.   This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.”  (6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 235, p. 4225.)

Plaintiffs' challenge to the ultimate conclusion of law made by the trial court, i.e., that plaintiffs' “Code 7” time is not compensable work or duty time within the meaning of applicable ordinances of the City of Madera, presents the issue we are to decide.   Plaintiffs place primary reliance upon Los Angeles Fire & Police Protective League v. City of Los Angeles (1972) 23 Cal.App.3d 67, 99 Cal.Rptr. 908.   Defendants distinguish that case from the facts of this case and additionally rely upon the holding of this court in Fowler v. State Personnel Bd. (1982) 134 Cal.App.3d 964, 185 Cal.Rptr. 292.

We are not persuaded by plaintiffs' argument that Los Angeles Fire & Police Protective League is controlling on the issue of whether restrictions on the officers' conduct during their lunch break make it work time.   This court reached a contrary conclusion in Fowler.   Plaintiffs emphasize that this court's conclusion on this issue in Fowler is pure dictum.   At the same time, they appear to ignore the fact that an opinion on this issue was not essential to the Los Angeles Fire & Police Protective League court's determination that, under the charter of Los Angeles, daily meal periods do not fall into a category of overtime that is compensable.   Suffice to say that each court could have reached its ultimate determination that there was no statutory right to compensation for the meal period without deciding whether that period constituted work time.

It is apparent from each court's analysis of the problem, and it is a matter of common sense, that the number of restrictions which affected the conduct of the officers during their lunch break is not determinative.   The significant consideration is the effect of the restrictions.   We believe the issue to be decided is whether by reason of the restrictions the officer is “engaged to wait or waits to be engaged.”  (Armour & Co. v. Wantock (1944) 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118.)   Alternatively, the issue may be stated as whether the time during the lunch break is spent predominantly for the benefit of the employer or of the employee.  (Skidmore v. Swift & Co. (1944) 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124.)

In Los Angeles Fire & Police Protective League v. City of Los Angeles, supra, 23 Cal.App.3d 67, 99 Cal.Rptr. 908, the court decided that the officers' lunch break constituted work time.   That court relied in part upon Lindell v. General Electric Co. (1954) 44 Wash.2d 386 [267 P.2d 709] and Glenn L. Martin Nebraska Co. v. Culkin (8th Cir.1952) 197 F.2d 981.   However, those two cases relied in turn upon two older United States Supreme Court cases, Armour & Co. v. Wantock, supra, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118, and Skidmore v. Swift & Co., supra, 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124.   In both Armour and Skidmore, wage claims were made for overtime by certain employees who were engaged as firefighters in factories.   Incident to their regularly scheduled duties, however, both groups agreed to remain on the employer's premises for an additional period of time subject to immediate recall if the need arose.   During this additional time the employees variously slept, ate, played cards or engaged in other recreative activities.   They were rarely called to any form of active duty.   The Supreme Court held in both Armour & Co. v. Wantock, supra, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118 and Skidmore v. Swift & Co., supra, 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124, that the employees were entitled to compensation for the on-call time they spent on the employer's premises except for that time they were sleeping or eating, which they would have done regardless of their location.

The courts in Lindell, supra, 44 Wash.2d 386 [267 P.2d 709] and Glenn L. Martin Nebraska Co., supra, 197 F.2d 981 applied the two criteria which had emerged from the earlier Supreme Court decisions in Armour & Co. v. Wantock, supra, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118 and Skidmore v. Swift & Co., supra, 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124.   In both Lindell, supra, and Glenn L. Martin Nebraska Co., supra, the plaintiffs were security guards at plants engaged in national defense industries.   They were required to take their lunch hours on the employer's premises in order to be available for immediate recall in the event a emergency situation, such as sabotage, arose.   Both courts determined that the presence of the employees on the premises of the employer during their lunch hour (which was required by the employer) was primarily for the employer's benefit and not for the employees', (Armour & Co. v. Wantock, supra, at p. 133, 65 S.Ct. at p. 168) and further that the employees had been engaged to wait (Skidmore v. Swift & Co., supra, at p. 137, 65 S.Ct. at p. 163).   They were engaged to be available in the event the need for their services arose;  they were not merely eating lunch while waiting to be engaged in a recall to duty.   It was on this basis that the employees in Lindell and Glenn L. Martin Nebraska Co. were found to be entitled to overtime compensation for their lunch hours required to be spent on the employer's premises.   We believe this same distinction must be recognized and resolved in this case.

In deciding that the lunch break constituted work time, the Los Angeles Fire & Police Protective League court relied also on two California Supreme Court cases.   These cases are Garzoli v. Workmen's Comp. App. Bd. (1970) 2 Cal.3d 502, 86 Cal.Rptr. 1, 467 P.2d 833 and Guest v. Workmen's Comp. App. Bd. (1970) 2 Cal.3d 670, 87 Cal.Rptr. 193, 470 P.2d 1 concerning the claims of police officers (Guest ) or their survivors (Garzoli ) for workmen's compensation benefits.   The claims in both cases arose out of accidents which occurred while the officers were traveling to or from work while in full uniform, including their weapons.   Under these circumstances, pursuant to department policy, they were expected to render services to members of the public if necessary.   In both cases the Workmen's Compensation Appeals Board held that the injuries were not compensable because of the “going-and-coming rule.”   The Supreme Court reversed in both cases after noting that, in determining whether the facts bring a case within the exception to the going-and-coming rule, the provisions of the Workmen's Compensation Act are to be “ ‘liberally construed by the courts with the purpose of extending the benefits for the protection of persons injured in the course of their employment.’ ”  (Garzoli v. Workmen's Comp. App. Bd., supra, 2 Cal.3d at p. 505, 86 Cal.Rptr. 1, 467 P.2d 833;  Guest v. Workmen's Comp. App. Bd., supra, 2 Cal.3d at p. 673, 87 Cal.Rptr. 193, 470 P.2d 1.)

In Garzoli the facts established that the officer had no means of transportation to the police station except to walk, drive his own motorcycle or hire a taxi, for which the city would not reimburse him, and further that there were no adequate facilities at the station within which he could change into his police uniform.

Similarly, in Guest the evidence established that the officer's election to dress in his uniform at home and thus to be expected to render assistance, if necessary, to members of the public was based upon his ascertainment that no facilities existed at the area of his special assignment within which he could change his clothes.   The court noted that by dressing at home and proceeding directly to the place of his assignment instead of proceeding to the police station at the start of his shift, changing, and then going to his special assignment, the officer increased the time he was on duty at the place of his special assignment.

We do not consider the conclusions reached in Garzoli and Guest or the reasons therefor particularly helpful in arriving at our decision whether lunchtime subject to restrictions constitutes actual work time.   A judicially created exception to an otherwise exclusionary provision of the Workers' Compensation Act does not equate, in and of itself, to a conclusion that the conduct underlying the exception is the equivalent of work or duty time.

We turn now to a comparison of the effects of the restrictions in this case on the officers' conduct during the “Code 7” time with those which the Los Angeles Fire & Police Protective League court considered significant.   The latter court stated:  “Similarly, in the case before us now, police officers are not free to follow private pursuits during “Code 7” time, they are subject to numerous obligations and restrictions for the benefit of their employer during this period, including being called out by their supervisors at a moment's notice.   The trial court's finding that the officers are working during their meal period is supported by substantial evidence.”  (Los Angeles Fire & Police Protective League v. City of Los Angeles, supra, 23 Cal.App.3d at pp. 76–77, 99 Cal.Rptr. 908, fn. omitted.)

In the instant case, subject only to the practical limitations inherent in a 30-minute lunch break, the officers are free to follow private pursuits during “Code 7” time when out of uniform.   With two exceptions the only obligations and restrictions to which they are subject during this period follow from their election not to take their meal period in their home or the home of a friend.   The exceptions are the obligation to notify their supervisor or communications where their patrol vehicle will be during the meal period and the obligation to remain subject to call.   Additionally, in this case, the officers have the right to be paid overtime or to have compensatory time off equal to any time which they are required to devote to their normal police duties during “Code 7” time.   The exceptions, plus the right to be paid for actual work time, only serve to emphasize that during the “Code 7” period the officers are waiting to be engaged and are not engaged to wait.

This conclusion is consistent with this court's opinion in Fowler v. State Personnel Bd., supra, 134 Cal.App.3d 964, 185 Cal.Rptr. 292.   There the court stated:

“CHP manual section 23.1 does not so restrict the use of lunchtime for personal business or pleasure that it must be considered as time worked.   Respondent during his lunch period is free with certain restrictions to eat in the restaurant of his choice, in his car, or at the station.   Work credit is provided during the time he responds to a callout, but not otherwise.  (39 Ops.Cal.Atty.Gen. 261, 264–265 (1962).)   Merely being ‘on call’ does not mean that the officer is working.  (35 Ops.Cal.Atty.Gen. 239, 241–242 (1960).)  Nor does wearing a uniform as a condition of employment mean that the officer is on duty.   When respondent accepted employment with the CHP, he agreed to wear the uniform required and implicitly agreed to perform all duties that resulted from wearing the uniform.”  (Id., at p. 970, 185 Cal.Rptr. 292.)

We therefore hold that the trial court properly concluded as a matter of law that “Code 7” time for the police officers and the dispatchers who worked the day shift was not work time under the rules, regulations and administrative practices of the City of Madera.

II. Did the trial court err in concluding that swing and night shift dispatchers are not entitled to additional compensation for their “Code 7” time although they are precluded from leaving the building?

Police Chief Skeels testified he was not certain as to the extent of any policy or regulation which precluded the police dispatchers who worked either the swing or graveyard shifts from leaving the police building.   However, both dispatchers Marvin and Burnett unequivocally testified that such a policy was in effect.   The procedural effect of this policy is to require separate consideration of the claims of the swing and graveyard shift dispatchers;  the dispatchers who work the day shift are subject to the same restrictions and are therefore in the same posture as the police sergeants and officers discussed above.

The practice is to assign two dispatchers to each shift and to arrange their meal breaks at separate times.   However, during the swing and graveyard shifts there are insufficient additional personnel available in the police station itself to provide backup assistance in the event of an emergency.   The radio cannot remain unattended, and an unexpected requirement for an extensive record check or unanticipated heavy traffic at the counter when only one dispatcher is available could create problems.   Therefore, the second dispatcher on the swing and graveyard shifts is required to remain in the building to prevent such problems.

This situation differs from the restrictions imposed on the police officers and those working the day shift as dispatchers.   The requirement that swing and graveyard shift dispatchers remain physically present in the police building during their meal breaks puts them in the position of being “engaged to wait.”   They are required to be in a particular physical location solely for the benefit of their employer.  (See Lindell v. General Electric Co., supra, 44 Wash.2d 386 [267 P.2d 709];  Glenn L. Martin Nebraska Co. v. Culkin, supra, 197 F.2d 981.)   Moreover, restriction to the employer's premises effectively deprives them of freedom to follow private pursuits during the “Code 7” time.  (See Los Angeles Fire & Police Protective League v. City of Los Angeles, supra, 23 Cal.App.3d at p. 76, 99 Cal.Rptr. 908.)   It follows that they are entitled to be compensated for this time.3  The compensation would obviously be “straight time” if the dispatchers do not otherwise work in excess of eight hours including their “Code 7” time.

We affirm the decision of the trial court which denies to police officers and dispatchers who work the day shift compensation for their “Code 7” meal periods;  insofar as the trial court's judgment denied compensation for “Code 7” time to the dispatchers who are engaged on the swing or graveyard shifts and are precluded by department regulations from leaving the police station, it is reversed.


1.   Watch commanders (sergeants) report 15 minutes before the other employees and receive a 45-minute meal break.   The lead dispatcher's tour of duty is nine hours, and she receives a one-hour meal break.

2.   “1. Plaintiffs are the MADERA POLICE OFFICERS ASSOCIATION and individuals employed as police officers and a dispatcher by the City of Madera Police Department.“2. Defendant, CITY OF MADERA, is a municipal corporation of the State of California.“3. Plaintiffs were employed by the City of Madera to work eight (8) hour shifts as determined by the Chief of Police with a half (1/212) hour for lunch;  Plaintiffs were and are entitled to overtime compensation if they worked overtime.“4. Briefing time and report writing time are included in the eight (8) hour shift.“5. Restrictions, as such, imposed upon conduct of officers and dispatchers while at lunch, if they choose to eat in public or the fact that they are “on call” during the lunch period, do not entitle Plaintiffs to additional compensation or overtime, the court finding that when they are called upon to put in extra time, over and above their regularly scheduled time of work to perform duties, they are compensated.”

3.   Like the court in Los Angeles Fire & Police Protective League v. City of Los Angeles, supra, 23 Cal.App.3d 67, 99 Cal.Rptr. 908, we believe there is no constitutional or legal requirement that all dispatchers in a police department receive the same compensation where differing duties or restrictions dictate a pay differential.  (Id., at p. 73, fn. 3, 99 Cal.Rptr. 908.)

HAMLIN, Associate Justice.

FRANSON, Acting P.J., and PAULINE DAVIS HANSON, J., concur.