RALPH C. ERICKSON & others [Note 1] vs. CITY OF WALTHAM.

ARMSTRONG, J. This bill in equity was brought by the plaintiffs, members of the police department of the city of Waltham (city), to secure declaratory relief, certain forms of interlocutory injunctive relief not here relevant, and compensation in excess of that previously paid them for overtime and for paid holidays during the period April 1, 1964, to April 1, 1970. The case was referred to a master, who found the plaintiffs entitled to additional compensation in several categories of claims. After confirmation of that report, a final decree was entered which made declarations of general principles governing the rights of the plaintiffs to the additional compensation sought, and then, presumably applying those principles to the situations of the individual plaintiffs, declared the city indebted to them in varying dollar amounts, which

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were ordered paid. [Note 2] The case comes to us on the city's appeal from the final decree.

As no objections were made by either party to the master's report, and no appeal was claimed from the interlocutory decree confirming the report, the latter conclusively established the master's findings between the parties. Limoli v. Accettullo, 358 Mass. 381, 382 (1970). Those findings cannot be set aside unless mutually inconsistent, contradictory, or plainly wrong. Gil-Bern Constr. Corp. v. Medford, 357 Mass. 620, 623 (1970). However, the master's "conclusions of fact, based on inferences from the subsidiary findings, are open to review not only by the trial court but also by this court." LiDonni, Inc. v. Hart, 355 Mass. 580, 583 (1969). O'Brien v. Dwight, 363 Mass. 256, 281 (1973). This is true notwithstanding the fact that no objections were appended to the master's report. U.S. Fidelity & Guar. Co. v. English Constr. Co. 303 Mass. 105, 111 (1939). The case of Smigliani v. Smigliani, 358 Mass. 84, 87 (1970), cited by the plaintiffs, holds nothing to the contrary.

Overtime Compensation Claims

Three of the claims advanced by the plaintiffs related to overtime compensation. These claims arose out of a work schedule which established three shifts: a "day shift," commencing at 7:45 A.M. and terminating at 4:30 P.M., a total of eight hours and forty-five minutes; a "first half night shift", commencing at 4:30 P.M. and terminating at 12:30 A.M., a total of eight hours even; and a "second half night shift", commencing at 12:30

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A.M. and terminating at 7:50 A.M., a total of seven hours and twenty minutes. Officers assigned to the day shift are claiming a right to overtime compensation for the time in excess of eight hours required of their shift alone. Officers assigned to the night shifts, who alternated daily between the first half and second half night shifts, served after January 22, 1967, on a rotating schedule which was of eight weeks' duration and which required officers to work five days in six of those weeks, four days in one of those weeks and six days in the remaining week. They are claiming to be entitled to overtime pay for the sixth day which occurred once in each eight week cycle. [Note 3]

General Laws c. 147, Section 17B, inserted by St. 1956, c. 349, and accepted by the city in 1963, was in effect during the entire period in dispute. In relevant part it provides that

"The services of all regular or permanent police officers . . . shall be restricted to five days and to forty hours in any one week; provided that service in excess of the aforesaid days and hours may be authorized . . . and the officer performing such additional service shall be compensated at the hourly rate of his regular compensation for his average weekly hours of regular duty or such higher rate as may be determined by the person or persons authorized to establish pay scales . . .."

Day Shift Overtime

Although the city acknowledges that the day shift extends to forty-three hours and forty-five minutes each

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week, it argues that of each eight hour and forty-five minute shift one half hour represented off-duty time for lunch and fifteen minutes represented off-duty time for "`coffee break' and personal needs."

The master found that "General Regulations Subsection 1A" of the police department regulations states in part: "All officers may take one-half hour lunch period, to be taken at the discretion of the officer so as not to interfere with his duties." Absent some indication to the contrary we assume this regulation applied during the entire six-year period at issue.

Prior to 1967, officers on foot patrol, or "route men," had no specific lunch period. Rather, a route man was required to notify headquarters when he wished to take his half hour for lunch, and to receive permission from headquarters before doing so. He was also required to inform headquarters where he would be during that half hour, and could not eat his lunch at a place off his route without permission. After January 22, 1967, two specific half hour lunch periods were established, but a route man was still required to notify headquarters, receive permission, and, unless otherwise permitted, remain on his route during his half hour period. In October, 1967, the department introduced walkie-talkie communication between route men and headquarters and introduced a new lunch system, under which there was posted at headquarters a regular lunch schedule which apparently assigned a specific half hour lunch period for each route man. The latter could thereafter take his lunch without notifying headquarters, and was not required to remain on his route during his lunch period.

The divergence in practice before and after October, 1967, is not reflected in the master's subsidiary findings relating to lunch periods for officers assigned to cruisers. So far as we are told, they were at all times assigned specific, staggered lunch periods during which they were permitted to eat at home or elsewhere. Although cruiser

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men were required to notify headquarters when taking lunch, during that time the cruiser was left unattended with the radio shut off.

Officers assigned to station house duty worked in normal complements of four, with three required to be on duty at all times. These officers worked out the time and order of lunch among themselves. Such officers were free, subject to release (we assume as to time only) by the officer in charge, to leave the station, or instead could have their lunches brought into the station.

The master also found that all officers were subject to be called upon to perform emergency duties during their lunch periods, and that "[p]olice officers [whether route men or all officers is not clear from the context] while on lunch period have had lunch interrupted because of duties or emergencies requiring the officer to perform in his official capacity."

No contention appears to be made that coffee breaks or breaks for personal needs rest on a regulation or on an established custom. Rather, the city's contention appears to be that officers generally spend at least fifteen minutes of each shift on such pursuits. The master made no finding in that respect.

The master drew the following conclusions: (1) "that all day shift police officers are subject to call and actually under the control and direction of the . . . Department, and thereby on duty, during their one-half hour lunch period, coffee breaks and when attending to calls of nature"; and (2) "that all day shift police officers . . . working between the hours of 7:45 A.M. and 4:30 P.M. . . . are continually on duty and employed eight and three-quarters hours during those hours."

The master's conclusion is correct with respect to breaks for coffee and personal needs. There are no subsidiary findings to sustain the city's contention that during such breaks officers are not on duty; and as a practical matter it would be very difficult administratively

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to treat a multiplicity of irregular, short breaks as off-duty time. See Mitchell v. Greinetz, 235 F. 2d 621, 625 (10th Cir. 1956).

We do not agree, however, with the master's conclusion that the half hour lunch period must be included as time spent on duty. Rather, we construe the departmental regulation, viewed in the light of the practice under it, as having given each man a half hour off duty for lunch. The regulation is not altogether clear in this respect, and the plaintiffs argue that the language "so as not to interfere with his duties" implies that the men were on duty throughout the lunch period. We feel there is a distinction, however, between being permitted to eat lunch in such manner that it does not interfere with one's duties, as in Albright v. United States, 161 Ct. Cl. 356, 361-362 (1963), and being permitted to take a half hour lunch period in such manner that it does not interfere with one's duties. The implication of the latter, read in the light of the earlier practice of not having fixed lunch periods, is merely that the selection of one's half hour lunch period should be timed so as not to interfere with duties known beforehand.

This case falls within the rule that "[g]enerally speaking, time available for, or spent, sleeping and eating is non-compensable, even where the employee is required to be on the employer's premises. This rule is now well established." Rapp v. United States, 340 F. 2d 635, 642 (Ct. Cl. 1964). [Note 4]

The master's findings that officers were subject to call back to duty during lunch, and in fact were sometimes (how frequently does not appear) so called back, is not

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inconsistent with the city's contention that when not so called the officers were off duty. Bantom v. United States, 165 Ct. Cl. 312, 320 (1964), cert. den. 379 U.S. 890 (1964). The fact that there were at various periods no fixed times for lunch, that during some periods the plaintiffs were restricted as to the places lunch could be taken, and that (in the case of officers assigned to station house duty) officers frequently had their lunches brought into the station house, do not require a conclusion that the officers involved were on duty during their lunch times. Bowling v. United States, 181 Ct. Cl. 968, 976-977, 980 (1967). This case is different from such cases as Missouri, K. & T. Ry. v. United States, 231 U.S. 112 (1913), Armour & Co. v. Wantock, 323 U.S. 126 (1944), and Albright v. United States, 161 Ct. Cl. 356 (1963), in all of which employees performed their duties during the periods claimed for. We see no evidence in this case that the plaintiffs were normally expected to be performing their regular duties during the period reserved for lunch. On the contrary, they were subject to call back to duty when it was necessary for them to serve. To the extent that they were called upon to perform duties during their lunch periods, and did so, such time would be compensable. (Bantom v. United States, supra, at 320; Bowling v. United States, supra, at 980), and, if recalls resulted in excesses of forty hours in any week, overtime would be required.

Officers who worked the day shift are therefore entitled to be credited with eight hours and fifteen minutes for each full shift worked, and, in addition, such time as they are able to show was spent on emergency duties during their lunch periods, provided that they were not able to finish their lunch periods after the emergencies were over.

Night Rotation Shift Overtime

On January 22, 1967, officers assigned to the night shift were put on a rotation cycle of eight weeks duration.

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In six of those weeks an officer would work five days. In the remaining two weeks of the cycle, the officer would work ten days, but six of those days were in one week, and four in the other. He would be paid in each of those weeks as if he had worked five shifts totaling forty hours. In other words, he received no overtime compensation for the last day of work in the six day week. Conversely, if he were called upon to work any time in excess of his four regular shifts in the four day week he would be paid overtime for that work, although he had not yet worked the five shifts or forty hours after which overtime pay is required under the provisions of Section 17B.

The city contends that Section 17B permits "averaging," i.e., applying the provisions of Section 17B not to the shifts and hours in a particular week, but to the average shifts and hours over a reasonable period of weeks. It further contends that, if "averaging" is not allowed, it should be permitted to offset against its obligation to pay overtime for the six day weeks the overtime compensation it actually paid for the four day weeks. The master and the court below rejected both contentions.

General Laws c. 147, Section 17B, does not appear to be ambiguous. Its plain wording places a five day, forty hour ceiling on the number of days and hours worked in a single week without overtime compensation. The practice of averaging is contrary to its purpose in that it would permit a city or town which accepts Section 17B not to compensate an officer for services rendered in excess of five days or forty hours in one week so long as the officer receives a corresponding reduction in the number of days or hours he is required to work in another week. Had the Legislature intended to permit such a practice, it could have so indicated in clear and unambiguous language, as it did in G. L. c. 48, Section 58B, which provides that "the average weekly hours of duty in any year [for firemen] . . . shall not exceed forty-eight in number," and again in G. L. c. 149, Section 30C, which

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provides that "[t]he service of all members of the uniform branch of the state police . . . shall consist of an average of forty hours per week over a period of one or more work weeks not in excess of eight." In contrast, Section 17B states that services rendered by a police officer "shall be restricted to five days and to forty hours in any one week." We read this language as explicitly excluding the practice of averaging. The reference to "average" in the part of Section 17B which deals with the computation of overtime compensation is not relevant to the question before us. And although the Supreme Judicial Court has held that a related section, G. L. c. 147, Section 17C, "permits averaging the hours worked in a reasonable number of weeks" (Bartley v. Watertown, 350 Mass. 622, 628 [1966]), the clear language of Section 17B seems to us to preclude a similar result.

Therefore, the city is required to pay overtime to men on the rotating night shift for the sixth day worked in the long week of the eight week rotation. But it follows from this that the city must be permitted to offset certain overtime paid to the same officers during the short week of that rotation -- namely, overtime that was paid during the short week for shifts not in excess of five and for hours not in excess of forty. The only basis for paying overtime for such shifts and hours in the first place was that if the hours could be averaged the statute (Section 17B) required it. If, as we hold, Section 17B does not permit averaging, then it clearly does not require overtime compensation for the fifth day, or for hours less than forty, in the short week of the rotation cycle. It would be both illogical and inequitable to permit the plaintiffs to exact overtime for the long week without refunding overtime for the short week.

Computation of Overtime Compensation

General Laws c. 147, Section 17B, provides that overtime for each officer should be compensated "at the hourly

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rate of his regular compensation for his average weekly hours of regular duty or such higher rate as may be determined by the person or persons authorized to establish pay scales in the respective police departments." The parties agree that overtime worked from April 1, 1964, to August 26, 1969, is to be compensated "at the hourly rate of his regular compensation for his average weekly hours of regular duty," as provided for by Section 17B, and, after March 27, 1969, also by the city's ordinance No. 22456 [Note 5] ; and that overtime worked between August 26, 1969, and April 1, 1970, is to be compensated at time and a half, as provided for by the city's ordinance No. 22569. [Note 6] The master found that in fact the city paid "straight time" before August 26, 1969, and time and a half thereafter. The parties disagree, however, as to the method by which the city should have made computations under those ordinances.

The master found that the city in fact computed "regular compensation for his average weekly hours of regular duty" (G. L. c. 147, Section 17B, and ordinance No. 22456), and "the base pay for a regular working week" (ordinance No. 22569) by dividing the annual salary of each officer by the number of days in the year (to arrive at a "daily rate"), and then multiplying the quotient by seven. The product was then divided by forty (agreed by the parties to be the proper method of computing the hourly rate from the weekly rate) to arrive at the hourly rate to be used as the basis for paying overtime. The master ruled that this method was in violation of Section 17B,

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but he did not suggest an alternative method in any coherent manner (unless, perhaps, that the city should divide an officer's annual salary by the number of weeks in a year, and then divide the quotient by forty to arrive at the hourly rate, which appears to us to amount to the same thing, at least assuming that the fractional week is not omitted in the mathematics). We see no impropriety in the city's continuing to employ the method that the master found it uses.

Holiday Pay

On the other hand, we are unable to accept the city's contention that it correctly computed holiday pay. The master found that police officers in Waltham regularly worked on holidays, unless the holiday happened to fall on one of the officer's regular days off, and that when a holiday fell on an officer's regular day off the officer was never given an additional day off. In either case the city paid the officer an amount of money equal to one seventh of the officer's weekly pay, computed as stated above. The plaintiffs contend, and the master and the Superior Court agreed, that the plaintiffs were entitled to have the holiday compensation computed on the basis of one fifth of each officer's weekly pay. In addition, the master and the judge appear to have ruled that to the extent that the holiday hours so compensated, when added to the hours actually worked in the same week, exceeded forty, the holiday compensation, after August 26, 1969 (the effective date of time and a half overtime compensation for Waltham police), must be computed on a time and a half basis.

The master found that Waltham "adopted General Ordinances Chapter 14, Section 14-5.1, . . . on . . . [February 12, 1963, which] was applicable to the . . . [plaintiffs] through [August 26, 1969], and that it provides as follows: `When any police officer who

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regularly works five or more days a week is required to work on January first, February twenty second, April nineteenth, May thirtieth, July fourth, the first Monday of September, October twelfth, November eleventh, Thanksgiving day or Christmas day or the day following when any of the five days first mentioned, or October twelfth, November eleventh or Christmas day, when the same occurs on Sunday, or where the regular day [off] of any such police officer falls on any of the aforementioned holidays, he shall be given an additional day off, or, if such additional day off cannot be given because of personnel shortage or other cause, he shall be entitled to an additional day's pay in lieu thereof.'"

In addition, the master found (apparently on the basis of an allegation in the plaintiffs' bill, admitted in the answer, to the effect that Waltham's ordinance No. 22456 provided that "[h]oliday pay for members of the police department shall be governed by the applicable provisions of [G. L. c. 147, Section 17A] . . .") that G. L. c. 147, Section 17A, [Note 7] "was effective and became applicable to the . . . [plaintiffs] on [March 27, 1969] . . .."

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The city contends that the reference to "the applicable provisions of [G. L. c. 147, Section 17A]" in the ordinance did not constitute an acceptance of Section 17A by it; that the provisions of Section 17A relating to the method of computing the "additional day's pay" are not made applicable in Waltham by the ordinance; and that its method of computing the "additional day's pay" called for under Waltham's General Ordinances, c. 14, Section 14-5.1, was permissible under the more general terms of the latter ordinance.

It is apparent that the city's computation of a day's pay was predicated upon a calendar day rather than a working day. That method is at variance with the great weight of authority which requires compensation to be measured by working hours or working days rather than by calendar days. See Overnight Motor Co. v. Missel, 316 U.S. 572, 580, and n. 16 (1942); Walling v. Helmerich & Payne, Inc. 323 U.S. 37, 40 (1944); Seneca Coal & Coke Co. v. Lofton, 136 F. 2d 359, 362 (10th Cir. 1943), cert. den. 320 U. S. 772 (1943); General Elec. Co. v. Porter, 208 F. 2d 805, 812 (9th Cir. 1953), cert. den. 347 U.S. 951 (1954); Triple "AAA" Co. v. Wirtz, 378 F. 2d 884 (10th Cir. 1967), cert. den. 389 U.S. 959 (1967). See also Bay Ridge Co. v. Aaron, 334 U.S. 446, 459-460, 464 (1948); Biggs v. Joshua Hendy Corp. 183 F. 2d 515 (9th Cir. 1950). Absent language in the ordinance clearly indicating that the city meant to adopt an unusual and atypical method of computing "a day's pay," we hold that the ordinance requires the more customary interpretation. The same result is required after March 27, 1969, by virtue of the ordinance which incorporated the principles of Section 17A, whether that section was accepted by Waltham or not.

As no contention is made that any of the obvious differences between G. L. c. 147, Section 17A, and Waltham General Ordinances, c. 14, Section 14-5.1, are applicable to the facts in this case, we decline to pass on the question whether Section 17A has been accepted by the city. In addition,

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there is nothing in the record as it comes to us, nor in G. L. c. 147, Sections 17A and 17B, which supports the provision in the final decree to the effect (as we understand it) that the city must pay the plaintiffs for holidays worked after August 26, 1969, the difference between one fifth of a week's pay and one seventh of a week's pay "computed at a rate of time and one half." Waltham General Ordinances, c. 14, Section 14-5.1 (so far as set forth in the record before us), and G. L. c. 147, Section 17A, both require only that the city give an additional day's pay based on the rate of the officer's regular compensation, not on the rate of his overtime compensation; and although Section 17A would permit a higher rate to be established "by the person or persons authorized to establish pay scales in the respective police departments," we are directed to no Waltham ordinance which has the effect of establishing a higher rate.

In conclusion, we hold that the city is indebted to each plaintiff for the difference between one fifth and one seventh of a week's pay for each holiday between April 1, 1964, and April 1, 1970, on which he was required to work, or which fell on his regular day off, and for which no additional day off was given, to be computed on the basis of his regular compensation for forty hours, and not on the basis of overtime compensation.

Laches or Waiver

The city in its answer pleaded that the plaintiffs' suit should be barred by operation of laches, and that the plaintiffs had acquiesced in the compensation policies they now attack. The point raised is sound in law, for "it would not be in accordance with sound principles to permit the plaintiff to accept in silence a stipulated weekly wage week after week and then, without previous notice, seek to recover more." Woods v. Woburn, 220 Mass. 416, 420 (1915). However, when the defense of

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laches is raised, the defendant must not only show inordinate delay by the plaintiffs in bringing their suit but must also prove that the delay was prejudicial. Mosely v. Briggs Realty Co. 320 Mass. 278, 283 (1946). Pettinella v. Worcester, 355 Mass. 412, 414-415 (1969). The burden is on the defendant, and the determination is ordinarily a question of fact. McGrath v. C. T. Sherer Co. 291 Mass. 35, 59-60 (1935).

In the case before us, there are no findings in the master's report to support the city's defense of laches. As that report was made subject to no objection by the city, as no appeal was taken from the interlocutory decree confirming it, and as the evidence is not before us, there is nothing in the record to show that the city's defense was made out in fact, or that the judge was in error. The defense must therefore fail.

Finally, we note that those parts of the final decree which purport to declare the general principles governing the rights of the plaintiffs to recover additional compensation (paragraphs numbered one through seven) are cast in such general and vague terms that it is only by reference to the master's report and the briefs of the parties that we are enabled to understand how those paragraphs reflect the principles on which the specific dollar computations have been based. Those paragraphs are to be revised so as to reflect succinctly the principles set forth in this opinion. The dollar awards (paragraph 8) are to be recomputed in accordance with those principles.

The final decree is reversed, and the case is remanded for further proceedings in conformity with this opinion.

So ordered.