582 F.2d 507 (9th Cir. 1978), 75-2671, Lerwill v. Inflight Motion Pictures, Inc.

Docket Nº:75-2671.
Citation:582 F.2d 507
Party Name:L. Mets LERWILL, Charles M. Perry, for themselves and on behalf of all employees of Inflight Motion Pictures, Inc., Plaintiffs-Appellees, v. INFLIGHT MOTION PICTURES, INC., Defendant-Appellant.
Case Date:September 27, 1978
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 507

582 F.2d 507 (9th Cir. 1978)

L. Mets LERWILL, Charles M. Perry, for themselves and on

behalf of all employees of Inflight Motion

Pictures, Inc., Plaintiffs-Appellees,



No. 75-2671.

United States Court of Appeals, Ninth Circuit

September 27, 1978

Page 508

[Copyrighted Material Omitted]

Page 509

[Copyrighted Material Omitted]

Page 510

Lawrence W. Thorpe (argued), Thorpe & Loynd, San Francisco, Cal., for defendant-appellant.

David B. Mogilefsky (argued), Tahoe Vista, Cal., for plaintiffs-appellees.

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

Before WALLACE and KENNEDY, Circuit Judges, and GRAY, [*] District Judge.

KENNEDY, Circuit Judge:

Relying on section 301 of the Labor Management Relations Act, two technicians covered by a collective bargaining agreement brought this class action against their employer to recover overtime pay as provided in the agreement and required by the Fair Labor Standards Act. The trial court held that the class action was properly maintained and that the class was entitled to the overtime pay, plus interest. On appeal the employer challenges the right of the employees to bring the class action under section 301 and further contends that the Union and a majority of the affected employees waived the overtime pay provisions of the bargaining agreement. We affirm.

The employer, Inflight Services, Inc., provides film and projectors for motion pictures shown on commercial airlines. As a part of its service, Inflight employs technicians to put the projectors in place, thread the film, and service the other equipment used to show movies to passenger audiences.

During the relevant period, January 1, 1967 through December 31, 1969, the technicians who performed these services for Inflight were covered by a collective bargaining agreement between Inflight and the International Alliance of Theatrical Stage Employees and Moving Picture Operators of United States and Canada, AFL-CIO, and Local 306 of the International. (Both labor organizations are referred to here as the "Union.") The pertinent portion of this collective bargaining agreement provided for overtime on 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 . . . .

All concede that for the period in question overtime wages were not paid by Inflight for hours worked by employees in excess of forty hours per week. However, notwithstanding the contract provisions and the terms of the Fair Labor Standards Act, Inflight argued that the Union and a number of employees purported to waive overtime pay in order to obtain a larger salary through an extended work week. It was alleged that if the employees had not agreed to waive the overtime pay, Inflight would have hired additional technicians to avoid paying overtime, and thus the technicians who were already employed would have lost the extra income.

The district court determined that the action was maintainable as a class action pursuant to rule 23(b)(3) of the Federal Rules of Civil Procedure. Notices were sent to class members, pursuant to Fed.R.Civ.P. 23(c), advising of the right to decline participation in the class or to retain counsel. After a trial without jury, the district court decided in favor of the employees and issued a well reasoned opinion which is reported at 379 F.Supp. 690 (N.D.Cal.1974). The matter was referred to a magistrate for a determination of the amount of unpaid overtime owing to each class member. Ultimately the magistrate's calculations were adopted by the district court and judgment was entered accordingly.

At the outset, Inflight challenges the right of the employees to sue under section 301 of the Labor Management Relations

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Act. 1 The employer contends that any cause of action for union members as a class must be prosecuted by the Union and not its individual members.

Section 301 provides a statutory mechanism for vindicating contract rights under a collective bargaining agreement. Although there is authority that only a union, and not individual employees, may assert a claim under a collective bargaining agreement if the matter involves questions of labor policy that by their nature must be reserved to the Union, Brown v. Sterling Aluminum Products Corp., 365 F.2d 651, 657 (8th Cir. 1966), Cert. denied, 386 U.S. 957, 87 S.Ct. 1023, 18 L.Ed.2d 105 (1967); Cf. Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50, 95 S.Ct. 977, 43 L.Ed.2d 12 (1975) (individual employees have no authority to picket employer over alleged discriminatory hiring...

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