Kayser v. Sw. Bell Tel. Co.

• Decision Date: 17 December 2012
• Docket Number: Case No. 4:10CV1495 CDP.
• Citation: 912 F.Supp.2d 803
• Parties: Josh KAYSER, et al., Plaintiffs, v. SOUTHWESTERN BELL TELEPHONE CO., Defendant.
• Court: U.S. District Court — Eastern District of Missouri

912 F.Supp.2d 803

Josh KAYSER, et al., Plaintiffs,

v.SOUTHWESTERN BELL TELEPHONE CO., Defendant.

Case No. 4:10CV1495 CDP.

United States District Court,

E.D. Missouri,

Eastern Division.

Dec. 17, 2012.

David Van Os, Matthew G. Holder, David Van Os & Associates, P.C., Austin, TX, Loretta K. Haggard, Schuchat, Cook & Werner, St. Louis, MO, for Plaintiffs.

Kimberly A. Yates, Patricia J. Martin, Stephen D. Smith, Littler Mendelson, P.C., Mary B. MacDonald, AT & T Services,Inc. St. Louis, MO, Lisa A. Schreter, Littler Mendelson, P.C., Atlanta, GA, Christian A. Bourgeacq, AT & T Services, Austin, TX, Stephen J. Sferra, Littler Mendelson, P.C., Cleveland, OH, for Defendant.

MEMORANDUM AND ORDER

CATHERINE D. PERRY, District Judge.

Plaintiffs are 20 “Premise Technicians” who have brought this collective action against Southwestern Bell Telephone Company to recover unpaid overtime under the Fair Labor Standards Act. Plaintiffs contend that time spent as union representatives during various meetings and activities should be counted for purposes of calculating overtime pay. They seek back pay and liquidated damages, a permanent injunction, and a declaratory judgment. Southwestern Bell seeks summary judgment on the declaratory judgment and injunctive relief claims. Plaintiffs also seek conditional certification of this as a collective action under the FLSA.

Plaintiffs concede that defendant is entitled to summary judgment on the claim for injunctive relief, as there is no injunctive remedy available under the FLSA to employees—that remedy can only be sought by the Secretary of Labor.

Southwestern Bell has presented uncontested evidence that it already counts certain union activities as “work time” for overtime purposes, and so I will grant defendant's summary judgment motion to the extent plaintiffs argue about those activities. Defendant is also entitled to summary judgment on the claim that union representatives' attendance at PMEI steering committee meetings is covered work under the FLSA. Genuine disputes of material fact preclude summary judgment, however, regarding union representatives' attendance at grievance hearings and their participation in charitable activities during work time.

Finally, I will conditionally certify this as a collective action, but the plaintiffs will be required to revise their proposed notice to be consistent with the rulings made here. Because I expect this order will affect the schedule that was previously imposed, I will vacate the current Case Management Order deadlines, and will set an additional scheduling conference.

Background

Plaintiffs are current or former Premises Technicians employed by Southwestern Bell who all serve or have served as stewards, officers, or representatives of the Communications Workers of America during their time at Southwestern Bell. In their roles for the union, plaintiffs represented employees in a variety of meetings, including grievance meetings, PMEI meetings, disciplinary meetings, and other miscellaneous meetings with Southwestern Bell management. The relationship between plaintiffs and Southwestern Bell is governed by a series of collective bargaining agreements, including various appendices and a settlement agreement. I will refer to these governing agreements collectively as the CBA.

Grievance meetings occur between management and Union representatives to discuss employee complaints or claims by the Union regarding potential violations of the CBA. Participative Management–Employee Involvement (PMEI) procedures are split into steering committee meetings and work committee meetings, and were established as part of the “Strategic Alliance” initiative between Southwestern Bell and the Union. The PMEI steering committees evaluate employee complaints or suggestions, and can assign the issues to a working group subcommittee for research. The steering committees can then present the ideas to management to try and get them implemented. Disciplinary meetings serve to notify employees of disciplinary actions being taken against them for unsatisfactory work performance or misconduct. Employees are entitled to have a Union representative present for the meeting.

Plaintiffs' complaint alleges that they have also participated in miscellaneous other meetings at the request of Southwestern Bell management. Although there is no mention of charitable work in the complaint, the parties have fully briefed whether certain charitable activities are covered. These activities include working with management to plan blood drives, and visiting various work centers during the representatives' work time to encourage other employees to donate. Plaintiffs also participated in soliciting donations for the United Way.

1. Motion for Summary Judgment

In determining whether summary judgment should issue, I must view the facts and inferences from the facts in the light most favorable to the nonmoving party, here plaintiffs. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party has the burden to establish both the absence of a genuine issue of material fact, and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in its pleadings but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e).

Section 7 of the Fair Labor Standards Act mandates that an employer may not subject non-exempt employees to a work week in excess of 40 hours unless the employee is compensated for her overtime with additional pay of at least one and one half times her regular hourly wage. 29 U.S.C. § 207. “The Fair Labor Standards Act requires that a covered employee be paid a minimum wage for all hours worked and overtime compensation when such an employee works more than forty hours in a given week.” Van Wyck v. Charleston Sanitary Bd., No. 2:10CV1029, 2011 WL 4544074 at *2 (S.D.W.Va. Sep. 29, 2011) (citing 29 U.S.C. §§ 206, 207). The FLSA does not define the term “work,” and thus courts are left to determine its meaning. Id. (quoting Perez v. Mountaire Farms, Inc., 650 F.3d 350 (4th Cir.2011)). An activity is generally considered to be “work” under the FLSA if it is “controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer.” Tenn. Coal, Iron & R.R. v. Muscoda Local 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944). The Department of Labor has also defined working time as all time an employee is “necessarily required to be on the employer's premises, on duty or at a prescribed work place.” 29 C.F.R. § 785.7 (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946)).

Uncontested Issues

Actions for injunctive relief under the FLSA can only be brought by the Secretary of Labor, and not by employees. See29 U.S.C. § 211(a); Barrentine v. Ark.-Best Freight Sys., Inc., 750 F.2d 47, 51 (8th Cir.1984). In their response to the summary judgment motion, plaintiffs concede this point. I will therefore grant summary judgment for the defendant in regard to injunctive relief.

Additionally, defendant concedes that time spent by union representatives in (1) any meeting where the union representative's presence is requested by management, (2) meetings of PMEI Working Committees, and (3) disciplinary meetings is considered the same as other work time, and is therefore both paid and counted towards overtime hours. Plaintiffs argue that they were not always paid for these meetings, and defendant argues that some of this time is covered only because of the CBA and not because of the FLSA. Plaintiffs still seek declaratory judgment that such time constitutes work time under the FLSA. Similarly, Southwestern Bell treats hours spent on PMEI Work Consultative meetings and other management-initiated meetings as compensable time for overtime purposes, although this time was not properly counted before April 2010 because of a computer error. Because of this prior error, plaintiffs seek declaratory judgment on these issues.

Since Southwestern Bell already treats all of these hours as compensable, there is no actual controversy here and any ruling would constitute an improper advisory opinion. See, e.g., Ringo v. Lombardi, 677 F.3d 793, 796 (8th Cir.2012) (“Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment” (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941))). I will therefore grant summary judgment as to disciplinary meetings, PMEI Work Consultative Meetings, and other Management–Initiated Meetings. ¹

Grievance Meetings

Plaintiffs claim that time spent representing employees in grievance meetings with Southwestern Bell should be counted in calculating overtime hours under the FLSA. Grievance adjustment procedures are dealt with specifically in 29 C.F.R. § 785.42:

Time spent adjusting grievances between an employer and employees during the time the employees are required to be on the premises is hours worked, but in the event a bona fide union is involved the counting of such time will, as a matter of enforcement policy, be left to the process of collective bargaining or to the custom or practice under the collective bargaining agreement.

Id. This regulation establishes a default presumption that time spent adjusting grievances is compensable if the employees were required to be on the premises. If there is a CBA, however, the...