after having been found in violation of the very best in attacking the person case by not paying them overtime now satisfy the act and nd that the city's fire medics assigned to everyone says were exempt under section two or seven k of the act as employees engaged and decision the one hundred and forty nine madison case all the way back in one thousand nine hundred and forty seven and as another authority we cite the city lawfully is attempting to avoid the required increase labor costs associated with overtime d artificially lowering their regular rate of pay says what we want the pain to be st and then figures out what part of that they want to call over to council as long as as long as the city can live with the eco last say why does it matter whether they go back back in them so you know i'm monthly salary here and that's the example that the regulation uses to take monthly salary you multiply it by twelve to find at the end salary would be you divide that by fifty two dollars and that gets you what the working hours a week would it doesn't make any difference for police who were more overtime than others or point please as here who only work overtime because that's what we're getting your honor these are employees who only work overtime and it's different in different weeks regardless that you're on you're supposed to tell me if i'm right or wrong but i respectfully have to disagree with both you and judge art and i don't think the way that these that this is being applied is different between these circuits at all if the i think of the fists were faced with facts like undisputed in the stipulation of facts because there was discussion about it i think even in the their way brief was there was no work period during which the final medics did question of whether they're subject and i understand and stand the footnote answer that the the idea that there's to be a damages issue but don't we have to look at the st instance to see whether they have the responsibility of fire suppression and would you then look at the entire work period of what their responsibilities were during that time this is the narrowly frame for the court that is when people who are assigned to  and is that different than fighting fires and we don't have the definition of fire suppression but one could in vision a world where that's when it is a grotto term and then fire fighting i don't think that's disputed i think the city is trying to tell you that these are different those are different fire mix i go off the stipulation and that's that the stipulation is like serve the rest of my time for a bottle th properly surmised is yes the record shows that the city calculates the regular rate for a static single role medical personnel like making a yearly salary and dividing by the hours for which it is intended to compensate because some of those hours are for each hour work through forty at that rate it has calculated and then the employee is compensated at least one dollar times that rate for each hour over forty therefore it complies with the f l let's say the classes reliance on and forty nine dollars madison is misplaced as the supreme court did not invalidate the formula that was used in that case rather the supreme court found that there was evidence the formula was not actually being used to calculate the employee's overtime rate the pay records show that not only does the city's formula rely on the actual facts that have been developed in the collective bargaining agreement with its union but that it actually includes the formula one hundred and forty nine dollars madison should not affect this court decision as to the fire batiks they are signed were kissed on both ambulances and fire suppression vehicles there are not two what types of fire medics employed by the city fire medics only employed by ambulance on ambulances and fire medics only employed on fire suppression vehicles the fire medics move between ambulances and suppression vehicles sometimes within the same shift not a single pane period has gone by where a fire medic has not worked on both types of apparatus when suppression vehicle they serve as a single role firefighter in the suppression of fires when staffed on an ambulance they still have the responsibility to assist with fire suppression whether by connecting hoses through and ladders or providing suppression related medical treatment which classes council recognise that this did not go beyond a six month period for the further lending support to the forward looking justification that the th the circuit justified the nd was to show that yes it is true that they had been assigned primarily to ambulances but it's also true that they were detailed away from those assignments as shown by the on unrefuted time records in this case which show that not a single peak period went by without every single fire medic in the class working on both suppression vehicle traditional suppression vehicle and ambulance and so that was the intent behind the   i'd like to move to the static single role that actually the supreme court has said that the regular rate is calculated by looking at the actual facts that the parties have agreed to an actual facts and this or th that they receive every year that is twenty two thousand six hundred and four hours twenty eight of those are to be considered it's three time hours and five hundred and twenty four dollars of them are scheduled overtime hours and i ask you static employees did go down so i assume that the that the yearly annual salary went down but that's a group of younger men reynolds which said that the parties can agree to any compensation at any time and this was a bona fide rechange one that was agreed upon with the collective bargaining unit of all of the employees in this case order to compensate mr similarly for all hours over forty i'd like to point out that the rate does not fluctuate as the class alleges that it does and according to the according to the overtime work there is a difference but that's because there are some non discretionary bonuses that need to be included and that's actually why beat the overtime rate is more than one dollar times the regular rate that's calculated as far as one  madison goes this is pretty court the collective bargaining agreement that was injured in two between the employees and the employer there included a formula for how the hourly wage was to be derived the supreme court did not invalidate the formula that was agreed upon by the parties that instead they say that there was evidence that the formula was not absolutely be used that some hours were always compensated as overtime without having actually worked over forty hours in a work week but that's not true in this case because the pay we've seen by mr zimmer of late as shown by the paid bice's shows that he was paid at the approved formula rate for all hours through forty dollars and then was paid at the overtime rate only once he worked in excess of those forty hours so it does matter how many hours mr zimmer we were he didn't get he doesn't get the overtime rate until he gets to those forty hours work in a work week employee are able to establish the regular rate at any point in any manner they say they see fit the th circuit echo that sentiment and allan the nd circuit echoed that and adams here there are no allegations that the city engaged in bad faith negotiations with the union in fact if you know local forty two there is no such thing as bad faith negotiations they are very powerful union they're not simply going to roll over because the city asked them to and so and so this is the product of a bona fide rate change and not done in retaliation or in order to circumvent the city's obligations under the alice a which it complies with by rate to take into account time well judge help address that point i would say that absolutely the application of the formula is as a response to the purpose and decision because we had to enter into a side letter agreement because of the terms and a decision in order to come into compliance with the f l a say but i would say that it's not retaliate if retaliation even if it is a part of this case which the city argues that it's not but it is not a scheme to circumvent the let's say because the city does pay the regular rate through forty hours and it does pay time and a half sometimes in excess of time and a half for apply going forward this is simply a retroactive case but at the time of the facts of this case it worked in every rd day schedule so some weeks would be seventy two hours scheduled some way to be forty eight hours schedule and the end they were also compensated with thirteen dollars days for non hate gays those happened once every night shift so there could be some weeks in which they are they are even scheduled for only twenty four hours of pay a duty not any overtime during those weeks so it is a sets it is a set schedule and my on my outlook calendar it has a ship the shi of course two or seven k grants a partial exemption for those individuals that are engaged in fire protection activity to one why defines what is meant by those engaged in fire protection activity includes paramedics employees rescue workers an emergency situations here all of those are not the issue as the fire medics have it for the city go through the same training academy as a single firefighter they have the legal authority to put out fires they are ploy by the city and the city which is a municipality and whether they're on a suppression vehicle or on an ambulance they're always responding to an emergency situation where life or property is at risk the only question then is whether they have the sometimes only as poor looking as the nd half of their shift or their next shift but i do believe that they have a present duty to engage in fire suppression if they were not active in the worms don't direct latter controlling poses participating and building evacuation and those are duties that would be assigned to a single role firefighter and not to a paramedic who was employed soley for their medical knowledge and treatment and so i would agree with your honor's conclusion that they have a present duty when at the scene of a fire to assist in the suppression of fires is very dispute about affidavit were not denied by any evidence in the record and therefore should be admitted i do not believe that there is any dispute that fire medics even when serving on an ambulance are active in the warm zon engaging in those activities there's no deposition testimony to the contrary there is no contrary affidavits that say that no not me i don't participate in the warm zone and so i believe that you need to treat those as  facts there are no further questions the city would urge the court to uphold both decisions of the district court and affirm the decision thank you and