Arrington v. National Broadcasting Co., Inc., Civ. A. No. 81-2019

• Decision Date: 28 January 1982
• Docket Number: Civ. A. No. 81-2019,81-2018.
• Citation: 531 F. Supp. 498
• Parties: Percy L. ARRINGTON, et al., Plaintiffs, v. NATIONAL BROADCASTING COMPANY, INC., Defendant and Third-Party Plaintiff, v. NATIONAL ASSOCIATION OF BROADCAST ENGINEERS AND TECHNICIANS, AFL-CIO, Third-Party Defendant. Douglas H. ALLMOND, et al., Plaintiffs, v. AMERICAN BROADCASTING COMPANY, INC., Defendant.
• Court: U.S. District Court — District of Columbia

531 F. Supp. 498

Percy L. ARRINGTON, et al., Plaintiffs, v. NATIONAL BROADCASTING COMPANY, INC., Defendant and Third-Party Plaintiff, v. NATIONAL ASSOCIATION OF BROADCAST ENGINEERS AND TECHNICIANS, AFL-CIO, Third-Party Defendant.

Douglas H. ALLMOND, et al., Plaintiffs, v. AMERICAN BROADCASTING COMPANY, INC., Defendant.

Civ. A. Nos. 81-2019, 81-2018.

United States District Court, District of Columbia.

January 28, 1982.

Lawrence S. Lapidus, Lawrence J. Sherman, Sherman & Lapidus, Washington, D. C., for plaintiffs.

Stuart M. Gerson, Judah Lifschitz, Epstein, Becker, Borsody & Green, Washington, D. C., for defendant in No. 81-2018.

Donald W. Savelson, Proskauer, Rose, Goetz & Mendelsohn, Washington, D. C., for defendant in No. 81-2019.

MEMORANDUM OPINION

FLANNERY, District Judge.

This matter comes before the court on defendants' motions for summary judgment or, in the alternative, disqualification of plaintiffs' counsel. Defendants assert three grounds in support of their motions: 1) that the instant litigation is, in effect, being brought by plaintiffs' union, NABET, and as such is barred by section 5 of the Portal-to-Portal Act, 2) that this Fair Labor Standards Act (hereinafter FLSA) suit for overtime wages should be dismissed because it is pre-empted by the collective bargaining agreement between plaintiffs' union and defendants, and 3) that, in any event, plaintiffs' counsel must be disqualified because of conflicts of interest and professional disciplinary rules violations created by their representation of plaintiffs in this case. In response, plaintiffs maintain: 1) that this suit is being brought by individual employees not by their union; 2) that plaintiffs' FLSA rights cannot in any way be pre-empted by the instant collective bargaining agreement, and 3) that there are no conflict of interest and/or disciplinary rule problems preventing them from representing plaintiffs in this case. For the reasons discussed below, defendants' motions are denied.

FACTS

Plaintiffs, broadcast engineers at both the American Broadcasting Company and the National Broadcasting Company (hereinafter "ABC" and "NBC"), bring this action under the FLSA primarily seeking an award of unpaid overtime compensation.¹ Plaintiffs claim that they are entitled to such an award because defendants' rate of compensating them for overseas work violates the FLSA. Plaintiffs bring this action under section 16(b) of the FLSA, 29 U.S.C. § 216(b), which allows employees to bring both individual and group suits for FLSA violations. In order to bring a group suit, the only prerequisite is that all party plaintiffs must file "consents in writing" to be plaintiffs;² the instant case is such a group suit.³

Defendants' version of the facts differs only in that they view the plaintiffs' union, NABET, and not the individual plaintiffs as being the "real party in interest" in this suit. See at 502-503, infra.

I. Portal-to-Portal Act

In 1947, in response to a "national emergency"⁴ created by a flood of suits under the FLSA aimed at collecting portal-to-portal pay allegedly due employees,⁵ Congress enacted the Portal-to-Portal amendments to the FLSA. 61 Stat. 87 (1947). The original, stated purpose of the bill containing these amendments was: "To define and limit the jurisdiction of the courts, to regulate actions arising under certain laws of the United States, and for other purposes." 93 Cong. Rec. 156 (H.R. 2157). To this end, the amendments, among other things,⁶ barred unions from bringing representative actions under the FLSA.

This ban on representative actions originated in the Senate's consideration of the bill. See 93 Cong. Rec. 4371. The Chairman of the Senate Judiciary Committee, Senator Donnell, explained the rationale behind this ban:

We now proceed to the final portion of the bill, part IV. Section 8 contains a provision entitled "Representative Actions Banned." Let me say just a word about what is meant by representative actions. It will be recalled that in section 16(b) of the Fair Labor Standards Act there is a provision reading as follows:

Action to recover such liability—

This is, the liability for unpaid minimum wages, unpaid overtime compensation, and liquidated damages—

Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.

It will be observed, Mr. President, that two types of action are permitted under this sentence in section 16(b) of the Fair Labor Standards Act of 1938: First, a suit by one or more employees, for himself and all other employees similarly situated. That I shall call for the purpose of identification a collective action, a suit brought by one collectively for himself and others. The second class of actions authorized by that sentence embrace those in which an agent or a representative who may not be an employee of the company at all can be designated by the employee or employees to maintain an action on behalf of all employees similarly situated.

In illustration of this latter category— which category for purposes of identification I call a representative action, as distinguished from a collective action—suppose that every one here present this afternoon were employed by the X steel company, and we all belonged to a labor union, and gave a power of attorney to the district director of the labor union who might live 500 miles away and not be employed at all in the plant in which we were employed. He could file a suit there as a representative of all of us. We would not be in that case at all except as he is our representative. It will be noted, therefore, Mr. President, that in those two classes of cases there is this difference: In the first case, an employee, a man who is working for the X steel company can sue for himself and other employees. We see no objection to that. But the second class of cases, namely, cases in which an outsider, perhaps someone who is desirous of stirring up litigation without being an employee at all, is permitted to be the plaintiff in the case, may result in very decidedly unwholesome champertous⁷ situations which we think should not be permitted under the law.

So section 8 amends the Fair Labor Standards Act by eliminating that portion of section 16(b) which permits employees to designate an agent or representative to maintain an action for and in behalf of all employees similarly situated.

93 Cong. Rec. 2182 (Remarks of Senator Donnell) (emphasis supplied). Thus, it seems clear that the purpose of the ban on representative actions was to prevent large group actions, with their vast allegations of liability, from being brought on behalf of employees who had no real involvement in, or knowledge of, the lawsuit.⁸ Such situations unfairly left employers in the dark concerning the identity of the individuals whose claims would be litigated at trial. See Bartels v. Pier Brothers, 74 F.Supp. 41, 44 (E.D.N.Y.1947).

This interpretation is reinforced by the Senate's further amendment to the same section of the FLSA; this amendment provided that no individual could become a party plaintiff in any action unless he gives his consent in writing and such consent is filed in the court where the action is brought. Once again, Senator Donnell articulated the rationale for adopting this provision:

Obviously, Mr. President, this is a wholesome provision, for it is certainly unwholesome to allow an individual to come into court alleging that he is suing on behalf of 10,000 persons and actually not have a solitary person behind him, and then later on have 10,000 men join in the suit, which was not brought in good faith, was not brought by a party in interest, and was not brought with the actual consent or agency of the individuals for whom an ostensible plaintiff filed the suit.

So we have provided, as I say, that no employee shall be made a party plaintiff to any such action unless he gives his consent in writing and unless such consent is filed in the court in which the action is brought.

Certainly there is no injustice in that, for if a man wants to join in the suit, why should he not give his consent in writing, and why should not that consent be filed in court?

93 Cong. Rec. 2182. Clearly then, the "consent in writing" requirement is a parallel provision to the ban on representative actions; together they seek to eradicate the problem of totally uninvolved employees gaining recovery as a result of some third party's action in filing suit.

Further, a contemporaneous judicial construction of the amendments supports this court's interpretation of the purpose underlying the ban on representative actions. In 1949, in Gibbons v. Equitable Life Insurance Society of the United States, 173 F.2d 337 (2d Cir. 1949), Judge Augustus Hand noted: "The terms of the Portal-to-Portal Act indicate that one of its aims was to prevent the assertion of surprise claims by unnamed employees at a time when the statute of limitations would otherwise have run." Id. at 339.

Based upon the ban of representative actions discussed above, defendants argue that the instant cases must be dismissed because they are, in effect, representative actions. Although it is undisputed that plaintiffs' union is not named as a party plaintiff representative in this action, defendants argue that the sum of the union's activities in connection with the instant case indicate that the union is the "real party in interest" in this case and that, in this manner, the union is attempting to achieve indirectly what the Portal-to-Portal Act prohibits it from doing directly. As illustration of the union's activities and involvement, defendants have attached exhibits which indicate:

1) that the initial inquiry to the Department of Labor concerning whether defendants' overseas compensation policies violate the FLSA was made by plaintiffs' counsel at the request of plaintiffs' union;

2) that...