154 F.3d 259 (5th Cir. 1998), 97-10955, Bernard v. IBP, Inc. of Nebraska

Docket Nº:97-10955.
Citation:154 F.3d 259
Party Name:(BNA) 1604 Jim BERNARD; William T. Clymer; Jessee Esparaza; Roger Graves; Ramany Khammanh; Alfredo Marquez; Nouchanh Phonmasak; Eddie Roberts; J.D. Vatole; Donovan Walters Jr; Glenn Webb, Plaintiffs-Appellees, v. IBP, INC. OF NEBRASKA, DefendantAppellant. Johnny Lee JAMES; Norman Timothy Jones; Anh Tuan Tran; Toby Verwey; Larry Duane Stephens; John
Case Date:September 21, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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154 F.3d 259 (5th Cir. 1998)

(BNA) 1604

Jim BERNARD; William T. Clymer; Jessee Esparaza; Roger

Graves; Ramany Khammanh; Alfredo Marquez; Nouchanh

Phonmasak; Eddie Roberts; J.D. Vatole; Donovan Walters

Jr; Glenn Webb, Plaintiffs-Appellees,

v.

IBP, INC. OF NEBRASKA, DefendantAppellant.

Johnny Lee JAMES; Norman Timothy Jones; Anh Tuan Tran;

Toby Verwey; Larry Duane Stephens; Johnny

Guillen, Plaintiffs-Appellees,

v.

IBP, INC. OF NEBRASKA, Defendant-Appellant.

No. 97-10955.

United States Court of Appeals, Fifth Circuit

September 21, 1998

Rehearing Denied Jan. 22, 1999.

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Kevin Thomas Glasheen, Christopher Todd Carver, Fadduol & Glasheen, Lubbock, TX, for Plaintiffs-Appellees.

Patrick Bryan Mosley, Robert Chad Pierce, Underwood, Wilson, Berry, Stein & Johnson, Amarillo, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before WISDOM, WIENER and DENNIS, Circuit Judges.

WISDOM, Circuit Judge:

IBP, Inc. of Nebraska, the operator of a beef processing and packaging plant in Amarillo, Texas, appeals from an adverse jury verdict awarding sixteen current and former maintenance workers monetary damages for IBP's violations of the Fair Labor Standards Act (FLSA). 1 We find that (1) this suit is not precluded by the collective bargaining agreement (CBA) under which the plaintiffs are employed, (2) the evidence supports the jury's verdict, (3) the district court did not err in rejecting IBP's requested jury instructions, (4) the district court did not err in sustaining the plaintiffs' objection to IBP's closing argument, and (5) the district court did not err in awarding liquidated damages to the plaintiffs. We affirm.

I.

IBP employed the plaintiffs, who were members of Teamsters Local Union Number 577, under a CBA providing for one thirty minute meal break during each shift. IBP paid the plaintiffs time and one-half for overtime worked. IBP did not compensate its employees for their thirty minute meal break, however. Under the CBA and the FLSA, IBP maintained that the plaintiffs' meal breaks were personal time for which they were not entitled to compensation. The plaintiffs filed this suit under the FLSA, arguing that they were entitled to payment for their meal breaks because they were not free to use the time for their own purposes. The breaks, they maintained, were for the benefit of IBP. The plaintiffs did not pursue their claims through the mandatory grievance handling and arbitration procedures of their CBA.

The jury heard conflicting evidence concerning the plaintiffs' responsibilities during their meal breaks. The plaintiffs testified that they were not relieved of their responsibilities as maintenance workers during these breaks. They testified that they were interrupted frequently by supervisors who often asked them to repair equipment that was crucial to IBP's beef packaging and processing operations. If the plant shut down because of an equipment failure, IBP would lose between $1,000 and $1,300 a minute. Horns and sirens would sound, marking the period of shut-down. Even when their breaks were not interrupted, the plaintiffs

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testified that they were not free to do as they pleased. They were required to stay on the premises, and supervisors often used the meal break as a time to meet with their maintenance crews to discuss the afternoon work schedule.

IBP's testimony directly contradicted the plaintiffs' assertions. Several supervisors testified that the maintenance employees, including the plaintiffs, were free to leave the plant during their meal breaks. Only on rare occasion did the supervisors interrupt a meal break. When they did, the maintenance workers were granted an additional thirty minute meal break during their shift. The plaintiffs also could refuse to allow interruptions of their meal break to perform maintenance duties without their being subjected to any adverse consequences.

At the close of the evidence, IBP moved for a judgment as a matter of law. The district court denied that motion, and the case was submitted to the jury. The jury returned a verdict in favor of the plaintiffs, awarding wages and overtime compensation for the meal breaks during the period in question. The jury also awarded liquidated damages under the FLSA, attorneys' fees, and costs.

IBP filed another motion for a judgment as a matter of law. Once again, the district court denied that motion and IBP appeals.

II.

IBP argues that the district court should have dismissed this case because the plaintiffs' FLSA suit was preempted by their CBA. Article 10 of the CBA between IBP and the plaintiffs' union provides that "Should the Union or any individual employee desire to pursue a grievance pertaining to the violation of the Agreement, or violation of employee's working conditions, the matter shall be handled according [to the CBA's procedures]." Arbitration of the dispute is the final step provided for in the CBA. IBP maintains that the plaintiffs' suit is one filed under the agreement, and, therefore, is subject to Article 10's arbitration clause. The plaintiffs argue that their suit is one to enforce rights created by statute that are separate from the CBA.

In Barrentine v. Arkansas-Best Freight System, Inc., the Supreme Court held that employees could pursue a claim under the FLSA even though they had pursued unsuccessfully a similar claim under the grievance-handling procedures of their CBA. The Court wrote:

"While courts should defer to an arbitral decision where the employee's claim is based on rights arising out of the collective-bargaining agreement, different considerations apply where the employee's claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers." 2

The Court continued:

"This Court's decisions interpreting the FLSA have frequently emphasized the nonwaivable nature of an individual employee's right to a minimum wage and to overtime pay under the Act. Thus, we have held that FLSA rights cannot be abridged by contract or otherwise waived because this would 'nullify the purposes' of the statute and thwart the legislative policies it was designed to effectuate.... Moreover, we have held that congressionally granted FLSA rights take precedence over conflicting provisions in a collectively bargained compensation agreement." 3

The Court also acknowledged that arbitration of FLSA claims is inadequate because the FLSA provides for liquidated damages, attorneys' fees, and costs. 4 In general, arbitrators do not have authority to award these special damages. 5 Under Barrentine, then, the plaintiffs' right to pursue a suit under the

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FLSA is completely independent from their rights under the CBA. 6

IBP relies upon Leahy v. City of Chicago, Illinois 7 to argue that the CBA precludes the plaintiffs' suit under the FLSA. In Leahy, a panel of the Seventh Circuit, over a vigorous dissent, concluded that police officers seeking overtime pay for meal breaks were required to pursue their complaint under the grievance handling procedures of the officers' CBA. 8 In his dissent, Judge Cudahy wrote: "the assertion that merely by providing for overtime pay in its collective bargaining agreement an employer may insulate itself from FLSA scrutiny borders on the preposterous. Yet the majority's opinion essentially boils down to just such an assertion." 9 Not only is the majority position "preposterous", it completely ignores the Supreme Court's decision in Barrentine. In the present case...

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