UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CLARENCE SMITH,
Plaintiff-Appellant,

v.                                                                   No. 95-2904

ASSOCIATION OF MARYLAND PILOTS,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Joseph H. Young, Senior District Judge.
(CA-94-2601-Y)
Argued: June 3, 1996
Decided: June 26, 1996

Before ERVIN and MOTZ, Circuit Judges, and SPENCER,
United States District Judge for the Eastern District of Virginia,
sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Jeremy Wethered North, NORTH & COBB, Towson,
Maryland, for Appellant. Gil A. Abramson, HOGAN & HARTSON,
L.L.P., Baltimore, Maryland, for Appellee. ON BRIEF: Andrew C.
Topping, HOGAN & HARTSON, L.L.P., Baltimore, Maryland, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Clarence Smith appeals the district court's order granting summary
judgment to the Association of Maryland Pilots on Smith's claims
that the Association violated the Fair Labor Standards Act, 29 U.S.C.
§§ 201-219 (1994), and the Maryland Wage and Hour Law, Md. Lab.
& Emp. Code Ann. §§ 3-401 to 3-431 (1991 & Supp. 1995), by fail-
ing to pay him overtime wages between 1991 and 1994. We affirm.

The Association, a collection agent for independently licensed
pilots who operate in Maryland waters, employs launch operators at
its three pilot transfer stations. Smith is one of these launch operators.
The launch operators are represented by Seafarers International
Union, which has entered into a series of collective bargaining agree-
ments with the Association. Smith alleged that the agreement in effect
between May 1, 1991 and April 30, 1994 did not provide for overtime
pay and that although on occasion "during the lifetime" of the agree-
ment, he had worked more than the hours contemplated by the agree-
ment, the Association failed to pay him for overtime.

The Association moved for summary judgment asserting that the
1991-1994 agreement provided a monthly wage rate which was com-
piled on the basis of twelve-hour work days and incorporated time
and one-half (1 1/2) after forty hours for each work week, as permit-
ted by the Fair Labor Standards Act. See 29 C.F.R. § 778.309 (1995).
Although the 1991-1994 agreement did not expressly so state, the
Association noted that the current collective bargaining agreement,
covering 1994-1997, provides that "the monthly wage rates . . . are
and always have been computed on the basis of a twelve (12) hour
work-day and have incorporated time and one-half (1 1/2) after 40
hours for each work week. The schedule has contemplated that
employees work (2) weeks per month." The Association also submit-
ted the deposition testimony of Union representative Michael

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Paladino, who negotiated the 1991-1994 collective bargaining agree-
ment with the Association. Paladino's testimony was consistent with
the Association's claim and the current agreement's provision that the
wage rates "always have been" calculated to include overtime.
Paladino stated that as far back as 1988, "there was a clear under-
standing . . . [that] overtime and wages [were] all included in the 12-
hour day."

In opposing the Association's motion, Smith asserted that material
facts were in dispute. He pointed to: (1) the absence of any mention
of overtime pay in the 1991-1994 collective bargaining agreement;
(2) the deposition testimony of a representative of the Association that
the Association had never calculated "an hourly pay rate for Mr.
Smith;" (3) affidavits of Smith and other launch operators that they
had never been told that they had been paid for overtime and they
had, in addition, worked hours in excess of the eighty-four hours con-
templated by the agreement without additional compensation; and (4)
six of his 1993 pay stubs. Smith submitted no evidence as to when
he had worked uncompensated overtime or how much overtime pay
was due him.

The district court found that Smith had failed to demonstrate a gen-
uine issue of material fact. The court concluded that the Association's
payment to launch operators, including Smith, of the monthly wages
provided for in the 1991-1994 collective bargaining agreement,
included overtime. Accordingly, the court granted the Association's
motion for summary judgment. That conclusion was proper. Neither
the absence of specific language in the 1991-1994 agreement nor the
deposition or affidavit testimony presented facts that contradicted the
Association's proof that the Association and Union had agreed in the
1991-1994 agreement that launch operators were to be paid a wage
rate that included overtime pay. Moreover, Smith's pay stubs demon-
strated that, in fact, during one of the six pay periods in 1993 for
which he submitted pay stubs he had worked more than seven days
and received pay for the additional time. We affirm on the basis of

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the district court's opinion. Smith v. Association of Maryland Pilots,
Civ. No. 4-94-2601 (D.Md. Sept. 11, 1995).*

AFFIRMED
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*We noted during oral argument that it was impossible to reconcile
with any precision Smith's biweekly normal gross pay in 1993 as shown
on his pay stubs with the wage schedule in the 1991-1994 collective bar-
gaining agreement. Under that agreement the normal pay of an unli-
censed launchman, like Smith, was $2062.54 a month or $24,750.48 a
year. According to his pay stubs Smith's normal biweekly pay in 1993
was $966.70 or $25,134.20 a year. The parties were unable to explain
this discrepancy. However, since the discrepancy is in Smith's favor, i.e.,
he apparently received more than that to which he was entitled under the
contract, it provides no basis for upsetting the district court's judgment.

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