          United States Court of Appeals
                      For the First Circuit


No. 01-1980

               KAREN LYNN BIENKOWSKI, DAVID EBERLE,
                DELIA ANN HOYE AND EDWARD MCDONALD,

                      Plaintiffs, Appellees,
                                v.

                     NORTHEASTERN UNIVERSITY,

                       Defendant, Appellant.



          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF MASSACHUSETTS
              [Hon. Rya W. Zobel, U.S. District Judge]



                              Before
                       Boudin, Chief Judge,

               Torruella and Selya, Circuit Judges.



     Judith A. Malone, with whom Krista Green Pratt, Palmer & Dodge
LLP and William H. Hulsey, Office of the University Counsel, were
on brief, for appellant.
     Scott A. Lathrop, with whom Scott A. Lathrop & Associates, was
on brief, for appellees.



                           April 8, 2002
          TORRUELLA, Circuit Judge.           This is a dispute arising

under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19.

The plaintiffs-appellees, campus police officers at Northeastern

University, sued their employer to recover overtime payment for

time they spent in classes for certification as emergency medical

technicians (EMTs).      On cross-motions for summary judgment, the

district court ruled in favor of the employees and awarded damages.

          The employer appealed the finding of liability, arguing

that our precedent applying the Portal-to-Portal Act of 1947, 29

U.S.C. §§ 251-62, forecloses liability in this case.        We agree and
reverse the judgment of the district court with instructions to

enter judgment in favor of the employer.

                   I.   FACTS AND PROCEDURAL HISTORY

          The parties submitted cross-motions for summary judgment
based on the following set of stipulated facts:
          Plaintiffs-appellees,       Karen    Lynn   Bienkowski,   David

Eberle, Delia Ann Hoye, and Edward McDonald, were at all relevant
times employed as police officers for the defendant, Northeastern
University, and were compensated on an hourly basis.
          Defendant-appellant             Northeastern       University

(Northeastern) is a private not-for-profit university located in

Boston, Massachusetts.

          As   a   condition   of   employment,   Northeastern   required

Bienkowski, Eberle, Hoye, and McDonald to receive and retain

certification as Massachusetts-registered EMTs within one year of

their appointment as probationary police officers. At the time the

                                    -2-
plaintiffs were hired as police officers, they were required to

sign a letter acknowledging that: "[e]mployees must receive and

retain    certification   as    a   Massachusetts    registered   emergency
medical technician within one year of appointment."           The training

for which the plaintiffs seek compensation occurred during their

probationary periods.        They performed no EMT services prior to
receiving their certifications.

            Pursuant to Massachusetts statutes, regulations, and

Department of Public Health standards, initial certification as an

EMT requires approximately 110 hours of classroom work as well as

10 hours of in-hospital observation time, practical exams, and

written exams.    Mass. Gen. Laws ch. 111C, § 9; Mass. Regs. Code

tit. 105, §§ 170.810, 170.910.         This certification is good for two
years.     To maintain certification after two years, EMTs must

complete additional refresher training.

            Courses leading to EMT certification were offered at
various    locations   and     times    throughout   the   Commonwealth   of

Massachusetts.    Northeastern also offered the EMT courses.

            In order to fulfill the foregoing requirements, the

plaintiffs attended EMT courses from January 7, 1997, through

April 3, 1997.    In addition, all of the plaintiffs completed 10

hours of in-hospital observation, attended EMT review classes, took

the EMT practical exam, and sat for the EMT written exam.                 The

plaintiffs elected to take the courses at Northeastern, where they

were entitled to tuition remission.




                                       -3-
            For the majority of the time, the classes, in-hospital

observations, and exams occurred outside of the plaintiffs' regular

working hours.    The plaintiffs performed no work for Northeastern
while they attended these classes.                  Following their certification

as EMTs, the plaintiffs were required to provide copies of their

certifications to Northeastern.
            Pursuant    to        a    collective       bargaining   agreement,        each

plaintiff    received        an       $850   stipend       on   receipt    of    the     EMT

certification.      Other than this stipend, the plaintiffs received

no   compensation      for     attending          the     EMT   courses,    in-hospital

observations, or time spent taking examinations.                           Northeastern

compensated the plaintiffs only for those hours when the classes,

in-hospital observations or exams took place during the plaintiffs'
working hours.

            Following their certification as EMTs, the plaintiffs

used their EMT skills while on the job at Northeastern. Bienkowski
recalled handling various medical emergencies, such as broken feet,

heart attacks, diabetic shock, and sports injuries. Prior to their

certification, the plaintiffs performed no EMT work.

            Following their certification as EMTs, Northeastern once

or twice a week assigned the plaintiffs to be attendants or drivers

on   its   ambulances    as       part       of   their    regular   paid       duties    as

Northeastern police officers.                Under Massachusetts law, one has to

be a certified EMT to work on an ambulance.                      Mass. Gen. Laws ch.

111C, § 9.




                                             -4-
            The district court, concluding that the time spent in EMT

training was an integral and indispensable part of the principal

activities for which covered workers are employed, ruled in favor
of the plaintiffs on their overtime claims under the FLSA.      In a

later ruling, the court found that the FLSA violation was not

willful and, therefore, did not warrant the imposition of multiple
damages.    This appeal followed.

                            II.     ANALYSIS

A.   Standard of review

            A motion for summary judgment can only be allowed if "the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law."      Fed. R. Civ. P.
56(c).     In ruling on the motion the district court must view "the
facts in the light most favorable to the non-moving party, drawing

all reasonable inferences in that party's favor."         Barbour v.

Dynamics Research Corp., 63 F.3d 32, 36 (1st Cir. 1995).

            The standards are the same where, as here, both parties
have moved for summary judgment. "The court must rule on each

party's motion on an individual and separate basis, determining,

for each side, whether a judgment may be entered in accordance with

the Rule 56 standard."    10A Charles Alan Wright, Arthur R. Miller

& Mary Kay Kane, Federal Practice and Procedure § 2720, at 335-36

(3d ed. 1998).



                                    -5-
           On appeal, we review the district court's ruling on

cross-motions   for   summary    judgment   de   novo.   Wightman   v.

Springfield Term. Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996).

B.   Portal-to-Portal Act

           The FLSA requires employers to compensate employees for

all "hours worked."    29 U.S.C. § 201.      However, the Portal-to-

Portal Act provides, in part, that an employer need not pay an

employee for activities that are "preliminary or postliminary" to

the principal activity or activities the employee is employed to

perform.   Id. § 254(a)(2).     The Supreme Court has interpreted the
mandate of the Portal-to-Portal Act to mean that "that activities

performed either before or after the regular work shift, on or off
the production line, are compensable . . . if those activities are
an integral and indispensable part of the principal activities for

which covered workmen are employed." Steiner v. Mitchell, 350 U.S.

247, 256 (1956).
           In arguing that the district court erroneously concluded

that EMT training was an integral and indispensable part of the
plaintiffs' work as Northeastern police officers, the defendant
places great emphasis on a decision of this court, Ballou v.

General Electric Company, 433 F.2d 109, 111 (1st Cir. 1970).
           In Ballou, apprentices in a program run by the employer

sought compensation for time spent attending classes conducted off-

site by independent educational institutions. The apprentices were
required by their employment contracts to prepare for, attend, and

make satisfactory progress in these classes.        An apprentice who

                                   -6-
failed to keep these conditions was subject to dismissal.         For the

most part, the off-site classwork did not relate directly to the

skills apprentices received in on-the-job training; its approach
was more theoretical, providing the apprentices with an academic

understanding of the skills they were developing.          Id. at 110.

            We concluded in Ballou that the time spent in such
classes was not compensable.       We rejected the notion that the

training was integral and indispensable to the employees' principal

activities simply because the employee could be terminated for

failing to complete it in a satisfactory manner.          Id. at 111.    We

noted also that, under settled Supreme Court precedent, employers

who furnished training to potential employees were not required

under the FLSA to compensate trainees for time spent in the
training program.    Id. (citing Walling v. Portland Terminal Co.,

330 U.S. 148 (1947), and Walling v. Nashville, Chattanooga & St.

Louis Ry., 330 U.S. 158 (1947)).        Because these cases required
individuals to be compensated only for their activity as workers,

rather than as students, we concluded that the employer's decision
to hire its employees before the completion of training did not

obligate it to compensate them for the time spent in their status

as students after their hiring.     Id. at 112.

            We find our reasoning in Ballou dispositive in this case

as well.    Here there is no question that, during the EMT training

sessions,   the   employees   perform   no   productive    work   for   the

employer.    Nor is there any question that, rather than providing

such training to its employees during their period of probationary


                                  -7-
employment,     Northeastern      could      simply    make     the    successful

attainment of an EMT certificate a precondition of employment.

Thus, we will not hold Northeastern liable for overtime pay for
time its employees spend as students, rather than as workers,

simply because Northeastern has decided to hire its employees on a

probationary basis until they complete the training required to
hold the job on a permanent basis.

           Plaintiffs respond that despite Ballou, the training is

compensable    under     the   Department      of   Labor    (DOL)    regulations

implementing the FLSA.         Once of those regulations, 29 C.F.R. §

785.27, makes training non-compensable if, inter alia, it is both

voluntary and unrelated to the employee's job -- conditions that do

not appear to be satisfied here.            But we doubt that the regulation
was meant to cover the peculiar situation presented here -- that

is, where the training is not continuing education relating to

existing job duties, but instead a pre-condition for employment
which the employer tolerantly allows to be satisfied while the

employee is working on a probationary basis.                And in the event the

regulation was intended to apply to such situations, it would be

inconsistent with Ballou's reading of the statute and precedent.

           The plaintiffs also attempt to distinguish Ballou on the

ground that it involved an apprenticeship program, which receives

separate treatment under the DOL regulations.                  See 29 C.F.R. §

785.32.1      Although    we   noted   in    Ballou   that    the     regulation's

1
    29 C.F.R. § 785.32 provides:

      As an enforcement policy, time spent in an organized

                                       -8-
apprenticeship provision "bolstered" our holding, 433 F.2d at 112,

we   gave   no   indication   that   our    conclusion   depended   upon   it.

Instead, our holding in Ballou relies on the statutory language of

the Portal-to-Portal Act and the controlling decisions interpreting

the provisions of the FLSA.

             Because the time spent by the plaintiffs in EMT training
is   not    an   integral   and   indispensable   part   of   the   principal

activities for which they are employed, we conclude that the

Portal-to-Portal Act precludes a finding of liability on the part

of   Northeastern.

                              III.   CONCLUSION

             The judgment of the district court is reversed, and the

case is remanded with instructions to enter judgment in favor of

the defendant.




      program of related, supplemental instruction by employees
      working under bona fide apprenticeship programs may be
      excluded from working time if the following criteria are
      met:
      (a) The apprentice is employed under a written
      apprenticeship agreement or program which substantially
      meets the fundamental standards of the Bureau of
      Apprenticeship and Training of the U.S. Department of
      Labor; and
      (b) Such time does not involve productive work or
      performance of the apprentice's regular duties. If the
      above criteria are met the time spent in such related
      supplemental training shall not be counted as hours
      worked unless the written agreement specifically provides
      that it is hours worked. The mere payment or agreement to
      pay for time spent in related instruction does not
      constitute an agreement that such time is hours worked.

                                      -9-
