Lerwill v. Inflight Services, Inc., C-70-244 ACW.

Citation379 F. Supp. 690
Decision Date24 July 1974
Docket NumberNo. C-70-244 ACW.,C-70-244 ACW.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
PartiesL. Mets LERWILL et al., Plaintiffs, v. INFLIGHT SERVICES, INC., Defendant.

David B. Mogilefsky, San Francisco, Cal., for plaintiffs.

Cullinan, Hancock, Rothert & Burns (Brian P. Burns and Thomas M. Burton) San Francisco, Cal., Raoul Gersten, New York City, for defendant.

MEMORANDUM OPINION AND FINDINGS OF FACT AND CONCLUSIONS OF LAW

WOLLENBERG, District Judge.

This is an action to enforce the overtime provision of a collective bargaining agreement. The case is properly before this Court under Section 301 of the Labor Management Relations Act, 29 U.S. C. § 185. The parties stipulated that trial would be held on the issue of liability only. Trial was held without a jury on November 12, 1973, and both parties have submitted extensive post trial briefs.

Plaintiff seeks to recover money allegedly due as overtime pay to himself and all other employees for work performed under a collective bargaining Agreement entered into in 1967 by Inflight Motion Pictures, Inc., International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, and Local 306 of the International. The Agreement in question applies to all members of the Union who are employed by Inflight and who perform work covered by the Agreement at airports and other locations throughout the United States and Canada. The relevant portion of the Agreement provides for overtime in the following terms:

The work week for full time technicians shall be forty hours per week; eight consecutive hours per day in five consecutive days per week. . . . Overtime shall be paid in one hour segments, or for a fraction thereof, at the rate of time-and-one-half . . . .

Plaintiff's Exhibit 1, at 4, ¶ 7. Defendant claims that whatever claims for overtime pay plaintiffs might have had under the Agreement were waived informally and by practice. Defendant also claims that plaintiff Lerwill does not adequately represent the interests of the plaintiff class, composed of all employees covered by the Agreement in question, because those employees demanded that they be permitted to work more than forty hours per week without receiving overtime, and that all concerned parties were satisfied with such an arrangement.

Interpreting the collective bargaining Agreement in question, which was in effect during the period January 1, 1967, to December 31, 1969, it is clear that the parties to that Agreement expressed themselves on the issue of overtime pay for work in excess of forty hours per week and that they agreed that overtime would be paid for such work. Defendant urges the Court to find that this provision was waived.

Certainly plaintiffs could not have waived their rights under the Agreement. The possibility of such waiver was rejected by the Supreme Court in J. I. Case Co. v. Labor Board, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762 (1944):

An employee becomes entitled by virtue of the Labor Relations Act somewhat as a third party beneficiary to all benefits of the collective trade agreement, even if on his own he would yield to less favorable terms. The individual hiring contract is subsidiary to the terms of the trade agreement and may not waive any of its benefits, any more than a shipper can contract away the benefit of filed tariffs, the insurer the benefit of standard provisions, or the utility customer the benefit of legally established rates.

321 U.S. at 336, 64 S.Ct. at 579.

Defendant claims plaintiffs' right to overtime was waived by the International Union, which, acting as exclusive bargaining agent for plaintiffs, and because plaintiffs wanted it, condoned Inflight's practice of paying extra shifts at the straight time rate. They argue that since the issue was an item of negotiation for the 1967 contract, no notice under 29 U.S.C. § 158(d) was necessary in order to modify the contract since the parties actually negotiated the practice of extra shifts at straight time.

Congress has placed at the core of our national labor policy the principle that employers and unions negotiate collective bargaining agreements and perform consistently with them. Recognizing that strict adherence to this principle may at times impose hardships upon labor or management, Congress has sought to provide for these situations while preserving the basic principle by providing for modification of collective bargaining agreements before their natural terminations so long as orderly procedures involving notice and negotiation are followed. 29 U.S.C. § 158(d). Tolerating modifications through informal agreement or unspoken acquiescence, as appears to have been done in the present case, creates the danger of substituting for collective bargaining a system of subtle suggestions, coercion or intimidation. This is not what Congress has mandated, and this Court may not formulate and apply a rule which would so interpret the National Labor Relations Act.

Accordingly, the Court finds that plaintiffs were entitled to receive overtime compensation for whatever overtime work was performed while the 1967 contract was in effect.

Defendant claims this is not a proper class action under F.R.Civ.P. Rule 23(a)(3) & (4) because plaintiff's claims are not typical of those he seeks to represent and because plaintiff will not fairly and adequately represent the interests of that class. The contract in question provides in Paragraphs 2 and 3 that it applies to all members of the Union employed by the employer and performing the services covered by the contract anywhere in the United States and Canada. Defendants do not dispute that plaintiff is one of the persons covered by the Agreement. He is therefore a member of the class consisting of all persons covered by the same contract. Plaintiff's legal claims are identical to those of all other members of the class, regardless of whether the others have chosen to assert them. Whether or not there was a contract, what the terms of the contract were and whether those terms were breached present common questions of law and fact for this Court to resolve. Plaintiff has diligently prosecuted this lawsuit; he has a real and immediate interest in the outcome which does not conflict with the interest of other class members, and, therefore, he can fairly and adequately represent the interests of the class. This lawsuit is properly maintained as a class action.

Defendant raises the issue of whether plaintiff has standing to bring this action, or whether only the union which negotiated the contract in question may bring such an action. The test for whether an individual may bring an action under 29 U.S.C. § 185 is correctly stated by defendant as depending upon whether the right sought to be enforced is vested in the individual plaintiff or whether it is possessed by the bargaining unit as a whole. Western Addition Community Organization v. N. L. R. B., 158 U.S.App.D.C. 138, 485 F.2d 917, 937 (1973); Bryant v. International Union, U.M.W. of America, 467 F.2d 1, 2-3, n. 1 (6th Cir. 1972); Brown v. Sterling Aluminum Products Corp., 365 F.2d 651, 657 (8th Cir. 1966). Overtime pay is a right granted by the applicable collective bargaining Agreement and in which plaintiff has a personal interest. He therefore has the necessary standing to bring this action.

Based on the foregoing, this Court finds that defendant had a duty under the collective bargaining Agreement under which members of the plaintiff class were employed to pay at the overtime rate for all overtime worked as defined in the Agreement. Members of the plaintiff class who worked such overtime shall have judgment for the amounts by which they were underpaid, with interest thereon computed at the legal rate. This case is referred to United States Magistrate Goldsmith who will determine the amounts by which each class member was underpaid and will then furnish this Court with appropriate findings and recommendations.

It is so Ordered.

ON MOTION TO AMEND FINDINGS

After a non-jury trial, this Court filed findings of fact and conclusions of law granting judgment in favor of Plaintiffs. Defendant has petitioned the Court to amend its conclusion of law that the union representing Plaintiffs could not have waived their right to receive time-and-a-half pay for work in excess of forty hours per week. Since Defendant believes the testimony proves such a waiver actually occurred, it argues that the effect of so amending the Court's memorandum opinion filed May 24, 1974, would be to require entering judgment in favor of Defendant.

Defendant challenges the Court's conclusion that the Plaintiffs could not, either individually or collectively through their union, informally modify their collective bargaining agreement and thereby waive their right to receive overtime pay under the terms of the original contract and under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. In support of its motion, Defendant relies heavily upon NLRB v. Universal Services, Inc. and Associates, 467 F.2d 579 (9th Cir. 1972) (hereinafter the "Amchitka case"), and NLRB v. Scientific Nutrition Corp., 180 F.2d 447 (9th Cir. 1950).

The Amchitka case involved a very unusual set of facts, and, as will shortly be evident, the Court of Appeals for the Ninth Circuit limited its holding to those specific facts. In a collective bargaining agreement between Universal Services and Local 302 of the International Union of Operating Engineers, it was agreed the existing agreement would apply to Universal Services employees engaged in preparing for a nuclear test on the desolate and isolated island of Amchitka off the coast of Alaska. Large numbers of workers were needed in a short time in order to meet government deadlines for the nuclear test, and more workers than Local 302 could provide were required, so members of Local 341 of the Construction and General Laborers'...

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