Allen v. Atlantic Richfield Co.

• Decision Date: 13 February 1984
• Docket Number: No. 82-2407,82-2407
• Parties: 26 Wage & Hour Cas. (BN 1050, 100 Lab.Cas. P 34,502 John A. ALLEN, et al., Plaintiffs-Appellants v. ATLANTIC RICHFIELD CO., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1131

724 F.2d 1131

26 Wage & Hour Cas. (BN 1050, 100 Lab.Cas. P 34,502

John A. ALLEN, et al., Plaintiffs-Appellants v. ATLANTIC RICHFIELD CO., et al., Defendants-Appellees.

No. 82-2407.

United States Court of Appeals, Fifth Circuit.

Feb. 13, 1984.

Browning & Associates, Dennis M. Beck, Rick Bensik, Houston, Tex., for plaintiffs-appellants.

Bracewell & Patterson, V. Scott Kneese, Tom Melo, Horace E. Campbell, Jr., Houston, Tex., for defendants-appellees.

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

Before POLITZ, JOHNSON and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge.

This case arises under that provision of the Fair Labor Standards Act (FLSA), 29 U.S.C. Sec. 201 et seq., which requires certain employers to pay time-and-a-half overtime pay for any hours over forty worked in a week. Plaintiffs appeal from a jury verdict which found that time spent off-duty but within the confines of the employer's plant was non-compensable time. Defendants argue on appeal that the trial judge erred as a matter of law when he found that the plaintiffs had standing to sue. We affirm the order of the trial court.

I. FACTS

Appellants, twenty-two security guards at Atlantic Richfield Company's ("Arco's") petroleum refinery in Houston, brought suit alleging that appellee owed them additional overtime compensation for hours worked during a strike by production employees. The strike lasted from about January 8 through March 30, 1980. Appellants normally worked three eight-hour shifts. During the strike, however, they worked twelve-hour on-duty shifts each day. They were paid for their on-duty shifts and for any actual work required during the normal off-duty twelve-hour period. Otherwise the guards were not paid for off-duty time when they were required to remain inside the refinery.

Arco's production employees, who are represented by the Oil, Chemical & Atomic Workers Union (OCAW), have a contract with Arco that expires every other January. In 1961, 1969, and 1980, production employees struck for new contracts. During those strikes, Arco operated its refinery with nonstriking personnel, including security guards. During the first OCAW strike, in January 1961, Arco worked out an arrangement with the guards under which the guards worked every other twelve-hour shift but were required to remain in the refinery unpaid during the remaining twelve-hour off-duty period. The guards were paid at a higher than usual hourly rate for the first forty hours spent on duty each week, and were paid one and a half times the higher rate for each hour per week over forty. During off-duty time, the guards ate, slept, and pursued recreational activities inside the refinery.

Since the 1969 strike, Arco has engaged in regular pre-strike planning in the November or December preceding each contract expiration. This planning included a meeting with guards' union representatives. Sometime in the mid-1970's, the stepped-up wage rate was first put in writing; in each relevant year thereafter an identical agreement as to the stepped-up wage rate was executed. These written agreements did not address the specific work hours nor did they address the arrangement for shift and gate assignments. The guards' union made no effort up through 1979 to negotiate for a change in the past strike compensation practice. At trial Arco introduced evidence that at the pre-strike meeting in 1978, John Hebert, a union officer and a plaintiff in this case, jokingly asked if pay would be for twenty-four hours a day for any strikes in 1979. A company representative replied in the negative because that had not been the practice in the past.

A brief illegal or wildcat strike, lasting about sixteen hours, occurred in January 1979 during an extension of the wage reopener provision. Because it was an emergency situation and not a planned contract expiration strike, guards were paid under their regular collective bargaining agreement. As distinguished from a typical contract expiration strike, there was no twelve-hour shift arrangement and no higher wage rate. There were no special quarters, cafeteria arrangements, or recreational facilities. Apparently, most of the appellants worked during this wildcat strike. The majority of them had never worked a contract bargaining strike.

Preparation for the January 1980 strike, here at issue, had included the usual pre-strike meeting with guards' union representatives. At this meeting, Arco representative Gary Hogue confirmed with the guards' union representatives the stepped-up wage rate of $12.41 per hour, an increase of approximately $3.00 per hour. The guards accepted the wage rate proposed by Arco. Hogue testified that at the December 20 meeting he told guards' union representatives that the proposed stepped-up rate was intended to be paid only for the twelve-hour on-duty time. There were no further meetings with the union regarding hours between the December 20 meeting and the beginning of the strike on January 8, 1980. Arco, however, points to evidence in the record of discussions between guards which indicated that they understood they were to remain in the refinery on a twenty-four hour basis and only be paid for the twelve-hour on-duty shifts. Bill Box, who interviewed all guard applicants for Arco from about 1974 to 1980, testified that he explained the contract expiration strike compensation arrangement to at least nine guards (plaintiffs) during interviews.

At a meeting on January 8 or 9, shift and work assignments for the 1980 strike were made. The guards voiced no complaint with respect to the compensation arrangement or work schedule. During the initial stages of the strike appellants were required to remain in the refinery on a twenty-four hour basis during both their twelve-hour on-duty shifts and their off-duty time. After this initial period of time, a third and then a half of the guards, while still working every other twelve-hour shift, were allowed to leave the refinery on their off-duty shifts.

Dormitory-type or travel trailer sleeping quarters were provided for appellants while they resided within the refinery. Food was provided at no cost to the employees in a cafeteria which was open around the clock. So long as they remained inside the refinery, appellants were free to utilize various recreational facilities which were provided. Although the record is unclear as to how many times or for how long guards were called to active service during their off-duty time, both parties agree that interruptions to nonwork time were infrequent. Guards were paid for those interruptions to off-duty time.

In the trial court appellants requested overtime compensation for the time spent on-call both in the plant and outside the refinery. There is no issue about overtime premium based upon the stepped-up rate for all hours over forty arising from the twelve-hour on-duty shifts. It was paid. The jury found in favor of Arco on each of the three interrogatories submitted to it: (1) the jury found that time spent on off-shift status inside the refinery was not work time; (2) the jury found that time spent on off-shift status outside the refinery was not work time; and (3) the jury found that there was an agreement between Arco and the guards that the off-shift time of the guards during the strike would not be work or compensable time. The court entered a final judgment for Arco and the guards appeal the jury's finding on the first and third interrogatories.

II. STANDING

Arco argues that this suit should have been dismissed in the trial court for lack of jurisdiction since none of the twenty-two named plaintiffs ever filed written consents with the court. Section 16(b) of the FLSA states that:

An action ... may be maintained ... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

29 U.S.C. Sec. 216(b).

Section 256 of the Portal-to-Portal Act states that:

[I]n the case of a collective or class action instituted under the Fair Labor Standards Act ... it shall be considered to be commenced in the case of any individual claimant--

(a) on the date when the complaint is filed, if he is specifically named as a party plaintiff in the complaint and his written consent to become a party plaintiff is filed on such date in the court in which the action is; or

(b) if such written consent was not so filed or if his name did not so appear--on the subsequent date on which such written consent is filed in the court in which the action was commenced.

29 U.S.C. Sec. 256.

The provisions requiring written consents were made law by the Portal-to-Portal Act of 1947. The Act was passed to combat the problem of one employee bringing suit on behalf of himself and "other employees similarly situated", often hundreds and sometimes thousands of employees, without naming the other employees. Deley v. Atlantic Box & Lumber Corp., 119 F.Supp. 727, 728 (D.N.J.1954). Thus the defendant employer would not know which other members of the class were actually going to participate, and the employer could be surprised by their testimony or other evidence at trial. As well, some courts had held that a favorable judgment for the named plaintiff was res judicata for the entire class. The clear intent of the provisions set out above was to make the members of the class of unnamed plaintiffs who wished to participate in, and be bound by, the action identify themselves for the benefit of the defendant. Ibid. The class members were allowed to do so by filing a written consent to the suit.

It is clear that a plaintiff does not need to file a written consent if an individual action is maintained. He or she is the named plaintiff. In this case, each claimant is a named ...