Barrentine v. Arkansas-Best Freight System, Inc., ARKANSAS-BEST

• Decision Date: 20 February 1980
• Docket Number: ARKANSAS-BEST,No. 79-1480,79-1480
• Citation: 615 F.2d 1194
• Parties: 103 L.R.R.M. (BNA) 2732, 24 Wage & Hour Cas. (BN 545, 88 Lab.Cas. P 11,888 Lloyd BARRENTINE; Clyde G. Edwards; Cleo Keeney; Maxie Blanton; Johnny Robinson; J. N. Scates; Charley Deaton; H. E. Mittchell and L. R. Young, Appellants, v.FREIGHT SYSTEM, INC.; International Brotherhood of Teamsters, Chauffeurs and Warehousemen, Local 878, A. J. Pickering, President, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1194

615 F.2d 1194

103 L.R.R.M. (BNA) 2732, 24 Wage & Hour Cas. (BN 545,

88 Lab.Cas. P 11,888

Lloyd BARRENTINE; Clyde G. Edwards; Cleo Keeney; Maxie

Blanton; Johnny Robinson; J. N. Scates; Charley

Deaton; H. E. Mittchell and L. R. Young, Appellants, v. ARKANSAS-BEST FREIGHT SYSTEM, INC.; International

Brotherhood of Teamsters, Chauffeurs and

Warehousemen, Local 878, A. J.

Pickering, President, Appellees.

No. 79-1480.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 6, 1979.

Decided Feb. 20, 1980.

David C. Vladeck, Washington, D. C., argued, Arthur L. Fox, II, Washington, D. C., on brief, for appellants.

S. Walton Maurras, Harper, Young & Smith, Fort Smith, Ark., for appellee, Best-Freight.

Melva H. Kozinsky, Little Rock, Ark., for appellee, Teamsters.

Before HEANEY and HENLEY, Circuit Judges, and SCHATZ, District Judge. ^*

HENLEY, Circuit Judge.

This labor case is before us on appeal from a final judgment of the United States District Court for the Eastern District of Arkansas (The Honorable Richard S. Arnold, District Judge) dismissing with prejudice after a substantial bench trial a two-count complaint filed by Lloyd Barrentine, J. N. Scates, and certain other persons against their employer, or former employer, Arkansas-Best Freight System, Inc. Also joined as defendants were Local Union 878 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers and A. J. Pickering who had become president of the local union when this action was commenced in the district court in 1977. ¹ For convenience, we will refer to the employer defendant as "the Company" or as "ABF"; and we will refer to the union defendant as the "Union" or as "Local 878."

ABF is a motor carrier of freight. It operates in interstate commerce under certificates of public convenience and necessity issued by the Interstate Commerce Commission as provided by what until recently was Part II of the Interstate Commerce Act, 49 U.S.C. § 301 et seq. ² The Company is a common carrier, and in its operations it makes use of tractors and semi-trailers which at a given time may or may not be in need of repair or adjustment in order to make them safe for over-the-road operations. The Company employs persons in a number of categories of employment, including over-the-road drivers.

During the suit period, ABF and its drivers were subject to the provisions of the Interstate Commerce Act above mentioned, and also to the provisions of the Labor-Management Relations Act of 1947, 29 U.S.C. § 141 et seq., which incorporated the provisions of the original National Labor Relations Act, 29 U.S.C. § 151 et seq. ABF was also subject to relevant provisions of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq., and as modified by § 4 of the Portal-To-Portal Pay Act of 1947, 29 U.S.C. § 254.

Additionally, under regulations promulgated by the Department of Transportation ABF's over-the-road drivers were required to make pre-trip safety inspections of the respective vehicles assigned to them. 29 C.F.R. §§ 392.7, 392.8 and 396.4 (1977).

ABF has its principal place of business in the City of Fort Smith in the Western District of Arkansas; it also operates a substantial terminal in Little Rock, which is in the Eastern District. Plaintiffs were employed at the Little Rock terminal. They were represented for collective bargaining purposes by Local 878, which is one of the local unions affiliated with the large international union that has been identified and which is generally called the "Teamsters Union."

Over the relevant period of time a collective bargaining agreement was in force between members of the trucking industry, on one hand, and the Teamsters Union and its locals, including Local 878, on the other hand. ABF and other truckers operating in Arkansas, notably Strickland Transportation Co., were parties to the agreement.

Article 44 of the collective bargaining contract, hereinafter called the Agreement, set out a detailed grievance procedure with binding arbitration by a joint industry-labor grievance committee as a final step.

Under Article 50 of the Agreement, as written, the respective employers were required to pay their employees for all time worked by them in the service of the employer.

An individual employed as an over-the-road truck driver might be required to perform non-driving tasks. In such a situation he was paid at one wage rate for time actually spent in driving and at a lower rate for non-driving time.

The controversy presently to be described arose in connection with the matter of compensation for the Company's Little Rock drivers for time spent in making pre-trip safety inspections and in taking their vehicles to the Company's repair facilities if the inspections developed that the vehicles needed repair.

There were originally nine plaintiffs in the case but as to three of them the complaint was dismissed with prejudice; the case went to trial as to the remaining six, including Lloyd Barrentine and J. N. Scates, the principal complaining drivers.

Prior to the commencement of the action Barrentine and Scates submitted formal grievances; the other driver plaintiffs did not do so. The complaints of Barrentine and Scates, which were representative, went to final arbitration before the joint grievance committee referred to in Article 44 of the Agreement and were rejected. ³ The case was treated as though Barrentine and Scates had been joined in the grievance-arbitration proceedings by the other four drivers with respect to whom the case went to trial.

An ABF driver employed at Little Rock is required when reporting for duty to "punch in" on a time clock; he then performs certain preliminary functions in the office for which he is paid but not at driving time rates. After the preliminary work is completed, he "punches out" and proceeds to his assigned vehicle or "rig."

Upon locating his rig, the driver makes the required pre-trip safety inspection which consumes only a short period of time. If he finds no defects, he proceeds on his way, and in that case he is paid driving time for all time spent driving. That pay practice is not questioned here.

The problem arises when the driver discovers a defect which under the regulations must be corrected before the actual trip begins. In such a case the driver is required to drive the rig to the Company's nearby repair facility, to "punch in" again on the same or another time clock, and to remain on the premises until the defect in his vehicle is remedied. He then "punches out" and commences his trip. He is paid for the time spent between the second "punch-in" and the second "punch-out," but he is not paid for the time between the first "punch-out" and the second "punch-in." The bone of contention here is the policy of ABF not to pay for the time in question, a policy that was ultimately upheld by the joint grievance committee.

During one of the "work periods" in controversy here the driver is required to locate his vehicle, evaluate its condition from the standpoint of safety, and if he finds it defective to drive it to the repair facility. The lengths of these uncompensated periods naturally vary to some extent, but in the nature of things they are not prolonged.

Count I of the complaint is based on the Fair Labor Standards Act, and federal jurisdiction is predicated upon § 16(b) of that Act, 29 U.S.C. § 216(b). The position of plaintiffs is that the time here in controversy is recognized as compensable time by § 4(b) of the Portal-To-Portal Pay Act, supra, and that under § 16(b) of the Fair Labor Standards Act plaintiffs are entitled to double damages, to be ascertained by a proper accounting, plus costs and a reasonable attorney's fee.

Count II is based on the Labor Management Relations Act of 1947 that has been mentioned, and federal jurisdiction is predicated on § 301 of that Act, 29 U.S.C. § 185. The charge is that the Union breached its duty to represent the plaintiffs fairly in connection with their controversy with ABF. The heart of the charge is to be found in paragraphs 5 and 6 of Count II, which we set out in full.

5. The collective bargaining agreement referred to in COUNT ONE, above, and attached hereto as "Exhibit A", provides for all employees to be paid from the time the employee is ordered to report for work and register in, and ceases at the time they are effectively released from duty. Also, as alleged in COUNT ONE, above, plaintiffs have been refused any pay whatsoever by defendant ABF for the time sought by plaintiffs, and such time has been spent in ABF's service after reporting for work and first registering in. ABF has repeatedly rejected demands of plaintiffs for pay for this time. Plaintiffs, and others similarly situated, have repeatedly sought aid and assistance from the defendant Local 878 for their grievances, and have been repeatedly rejected. Plaintiffs allege defendant Local 878 has breached its duty of full and fair representation to plaintiffs by its failure to process their grievances.

6. Plaintiffs have exhausted all other remedies in that defendant Local 878 has refused them full and fair representation with their grievances, and continued and further attempts to seek such would be futile.

Prior to trial the parties entered into a rather full stipulation including a stipulation as to the issues of fact and law that the district court would be required to decide. As far as Count II of the complaint is concerned, the pertinent provisions of the stipulation are as follows:

E. Are the terms of the bargaining agreement binding upon the plaintiffs and are they estopped from proceeding under 29 U.S.C. § 185?

F. Have the defendants breached their duty of fair representation owed to the plaintiffs?

G. Would it have been futile for all plaintiffs to attempt to resolve their complaints through the grievance procedure of the collective bargaining agreement?

H. Has defendant ABF breached the...