379 F.Supp. 690 (N.D.Cal. 1974), C-70-244, Lerwill v. Inflight Services, Inc.

Docket Nº:C-70-244 ACW.
Citation:379 F.Supp. 690
Party Name:L. Mets LERWILL et al., Plaintiffs, v. INFLIGHT SERVICES, INC., Defendant.
Case Date:May 24, 1974
Court:United States District Courts, 9th Circuit, Northern District of California

Page 690

379 F.Supp. 690 (N.D.Cal. 1974)

L. Mets LERWILL et al., Plaintiffs,



No. C-70-244 ACW.

United States District Court, N.D. California.

May 24, 1974

On Motion to Amend Findings July 24, 1974

Page 691

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.


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, P7. 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

Page 692

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...

To continue reading