Jonites, Peter P. v. Exelon Corporation

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-3053
PETER P. JONITES, et al., individually and
on behalf of others similarly situated,
Plaintiffs-Appellants,
v.
EXELON CORPORATION, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 4234—David H. Coar, Judge.
____________
ARGUED FEBRUARY 29, 2008—DECIDED APRIL 3, 2008
____________
Before POSNER, ROVNER, and EVANS, Circuit Judges.
POSNER, Circuit Judge. This appeal requires us to analyze
the relation between section 301(a) of the Labor Manage-
ment Relations Act (Taft-Hartley), 29 U.S.C. § 185, which
authorizes federal suits to enforce collective bargaining
agreements, and the Fair Labor Standards Act, 29 U.S.C.
§§ 201 et seq., the federal minimum-wage and maximum-
hour law. The plaintiffs represent a class (an “opt-in” class
under 29 U.S.C. § 216(b); see Harkins v. Riverboat Services,
Inc., 385 F.3d 1099, 1101 (7th Cir. 2004)) of more than a
2 No. 07-3053
thousand linemen and other hourly workers employed
by Commonwealth Edison. (Affiliates of Com Ed are also
defendants, but need not be discussed.) The plaintiffs
claim that Com Ed has violated their rights under the FLSA
by the way it implements its “call out” program and also
by forcing them to work during their lunch break with-
out paying them anything, let alone the overtime pay to
which they are entitled if they are indeed working then,
because the time allotted to those breaks, if added to the
normal work week, exceeds 40 hours.
The district judge granted summary judgment for Com
Ed. He ruled that the implementation of the call-out
program does not violate the FLSA and that the plaintiffs’
only remedy for the alleged mealtime violation is a pro-
ceeding to enforce their rights under the grievance and
arbitration provisions of the collective bargaining agree-
ment between the electrical workers union and Com Ed.
The union did seek arbitration, but only with regard to the
call-out program. It lost, and we rejected the union’s
challenge to the arbitrator’s decision. Local 15, International
Brotherhood of Electrical Workers, AFL-CIO v. Exelon Corp.,
495 F.3d 779 (7th Cir. 2007).
Com Ed’s “automated roster call out system”—
“ARCOS”—notifies off-duty employees by a phone call
to their home phone, beeper, or cellphone when addi-
tional manpower is needed on an emergency basis. An
employee is not required to accept a call out, but if he fails
to answer more than 50 percent of the calls or refuses to
accept more than 35 percent of the call outs (other than
because of excused absences, as when the worker is ill or
on a scheduled vacation), he is disciplined. And if he
continues to fall below either minimum he may be fired,
in which event he is forbidden to work on Com Ed prop-
No. 07-3053 3
erty or projects even as the employee of an independent
contractor.
An employee who accepts the call out travels first to his
normal duty station and then to the work site. He is paid
not only for the time working but also for the time it
takes him to get to the site from his normal duty station
and return there when he has finished working. But he
is not paid for the time he spends commuting to and from
his normal duty station.
Most call outs occur on weekends, but the frequency
varies considerably among workers. A few are called as
often as once every five-and-a-half days on average, and
some others no more than once a month.
Com Ed has always had to call out workers for emer-
gency repairs, and the fact that its call-out procedure is
now automated is not what bothers the workers. What
bothers them is that a cost-motivated reduction in the
number of Com Ed’s employees has led the company to
insist on a much higher response rate than in the old
days, when no response rate was specified and the
average rate was below 20 percent and sometimes below
10 percent. The plaintiffs argue that the frequent call outs
disrupt their home life and that therefore while waiting
for a call they are working within the meaning of the
Fair Labor Standards Act and thus are entitled to be paid
the minimum wage for their waiting time. They do not
press their claim to its logical conclusion—that they are
entitled to be paid for working 168 hours a week (since
an electrical outage or other emergency can occur at any
time), with 128 of them constituting overtime—but instead
argue vaguely that they should be paid for “some of the
time” during which they are subject to call, with how
much to be left to the trier of fact to determine. The deter-
4 No. 07-3053
mination would have to be made on a case-by-case basis
since the call-out experience varies so among the workers.
In its suit to set aside the arbitrator’s decision refusing
to invalidate ARCOS, the union had argued unsuccess-
fully that the adoption of the program was outside the
scope of the management-rights clause in the collective
bargaining agreement. It had also argued that the pro-
gram violated the Fair Labor Standards Act, but we held
that that argument had been forfeited.
The arbitrator, so far as appears, did not decide whether
the collective bargaining agreement places any limita-
tions on ARCOS. The language of the agreement sug-
gests that it does not; it states that “an employee ordered
to remain at a specified location, awaiting a call for emer-
gency work outside scheduled working hours, shall be
paid the applicable [wage] rate until release.” He is not
required to remain at home, but only to leave word
where he can be reached, which is easily done if he has a
cellphone or a beeper, for then he has only to give Com Ed
his number and be sure to have the instrument with him
and turned on when he’s not at home. But it is implicit in
the agreement, as we shall see when we come to the
mealtime question, that an employee is entitled to be paid
whenever he is working; and the plaintiffs argue that
even if they are not tied to their home when they are off
duty, still their freedom is so far curtailed that they are
“engaged [i.e., hired] to wait,” and so are entitled to be
paid.
The plaintiffs base their claim to off-duty pay on the
Fair Labor Standards Act. Although all of them are repre-
sented in collective bargaining by the union that lost its
suit to invalidate the arbitrator’s decision, Com Ed does
not contend that the claim is barred by res judicata
despite the outcome of the union’s suit, and it is right
No. 07-3053 5
not to contend that. E.g., McDonald v. City of West Branch,
466 U.S. 284, 291 (1984). Although the union represents all
the workers in the bargaining unit, it is not their agent in
the usual sense, since once a majority of the workers
agree to be represented the minority is bound as well. 29
U.S.C. § 159(a). Nor does voting for a union evince con-
sent to the union’s bargaining away the workers’ statutory
rights. So we must decide whether the district court was
right to find that the rules implementing ARCOS do not
violate the Fair Labor Standards Act.
A regulation of the Labor Department the validity of
which is not challenged provides that “an employee
who is required to remain on call on the employer’s
premises or so close thereto that he cannot use the
time effectively for his own purposes is working while ‘on
call.’ ” 29 C.F.R. § 785.17; see Pabst v. Oklahoma Gas &
Electric Co., 228 F.3d 1128, 1130-31 (10th Cir. 2000); cf. 29
C.F.R. § 553.221(c), (d). This may be true for some mem-
bers of the plaintiffs’ class, but obviously not for all or even
most. The call-out procedure does not require that the
worker stay at home or at any other designated location,
but only that he be reachable by the company, and the
regulation we just quoted goes on to provide that “an
employee who is not required to remain on the em-
ployer’s premises but is merely required to leave word at
his home or with company officials where he may be
reached is not working while on call.” See Skidmore v. Swift
& Co., 323 U.S. 134, 138 (1944).
Of course the requirement that one accept 35 percent of
one’s call outs curtails a worker’s freedom of action
somewhat even if they are infrequent, because if he is
only slightly above the floor he will be jeopardizing his
job if he leaves town for the weekend. But that does not
mean that he must stay in the house all weekend. He just
6 No. 07-3053
must stay within a two-hour radius of his normal duty
station (for that is the time he is allowed for getting there
if he accepts the call out). Is that such a hardship that it
turns his waiting into working? We think not, in agreement
with the case law on the issue, Dinges v. Sacred Heart St.
Mary’s Hospitals, Inc., 164 F.3d 1056, 1058 (7th Cir. 1999);
Adair v. County Charter of Wayne, 452 F.3d 482, 486-89 (6th
Cir. 2006); Ingram v. County of Bucks, 144 F.3d 265, 268-70
(3d Cir. 1998); Andrews v. Town of Skiatook, 123 F.3d 1327,
1332 (10th Cir. 1997); compare Cross v. Arkansas Forestry
Commission, 938 F.2d 912, 916-17 (8th Cir. 1991), though
no case is exactly like this one.
Some 70 to 90 percent of the class members work the
daytime shift and they claim that the half hour that the
company allows them for lunch at the job site is really
work time. They are forbidden to sleep during the lunch
period and required (that’s why they mustn’t sleep) to
be alert to trespassing at the site and theft of or damage
to tools. They are not required to patrol the site, but
merely, while sitting in the cab of their truck eating
lunch, to keep a sharp eye out for trespassers. Being
forbidden to sleep during a short lunch break cannot be
too great a hardship, as it is hard to sleep and eat at the
same time. The district judge, however, did not determine
whether any of the class members are required to
work during the lunch break, but instead, though with
evident reluctance, ruled that the question was within
the exclusive competence of an arbitrator to decide. He
felt compelled to this result by our decision in Leahy v.
City of Chicago, 96 F.3d 228 (7th Cir. 1996), which held
that where a collective bargaining agreement provides
that “all time in excess of the hours worked in a normal
workday (8 hours) and the normal workweek (40 hours)
shall be compensated at the rate of time-and-one-half,”
No. 07-3053 7
id. at 232, the determination of whether a worker
“worked” during his lunch break was for the arbitrator
to decide. The agreement in this case provides that “the
basic workday shall normally consist of eight hours of
work which shall be consecutive except when time out
for a meal is scheduled.” The question whether mealtime
is really “time out” from “work” is a question of both
contractual and statutory interpretation, and the court in
Leahy ruled that it was for the arbitrator to determine
whether the workers there were being made to work
during their mealtime. “The FLSA requires no more.” Id.
The dissenting judge in Leahy thought the majority
was ruling that collective bargaining agreements preempt
the Fair Labor Standards Act, a view unacceptable in light
of Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S.
728 (1981). Another panel of this court, in an opinion
subsequent to Leahy, said (without mention of that deci-
sion) that a “union cannot consent for the employee
[to waive his right to a judicial forum] by signing a col-
lective bargaining agreement that consigns the enforce-
ment of statutory rights to the union-controlled grievance
and arbitration machinery created by the agreement.”
Pryner v. Tractor Supply Co., 109 F.3d 354, 363 (7th Cir. 1997)
(emphasis in original). (The machinery is “union-con-
trolled” because it can be activated only by the union’s
filing a grievance on behalf of an aggrieved employee; as
long as the union acts in good faith it is not required to
file a grievance even if the aggrieved employee asks it to
do so. Vaca v. Sipes, 386 U.S. 171, 191-92 (1967); Matthews
v. Milwaukee Area Local Postal Workers Union, AFL-CIO,
495 F.3d 438, 441 (7th Cir. 2007).) In light of Barrentine
and Pryner, the district judge in this case ruled that Leahy
must be confined to issues of working at mealtime,
8 No. 07-3053
which is why he declined to apply the decision to the call-
out claim.
The year after our decision in Pryner, the Supreme Court
held in Wright v. Universal Maritime Service Corp., 525
U.S. 70, 80 (1998), that “a union-negotiated waiver of
employees’ statutory right to a judicial forum for claims
of employment discrimination” might be enforceable (not
that it would be—the Court left the question open) pro-
vided it was “explicit.” Wright was a discrimination
case, but we can assume that its holding applies to other
statutory rights, O’Brien v. Town of Agawam, 350 F.3d 279,
284-86 (1st Cir. 2003), and thus to Leahy and the present
case.
The collective bargaining agreement provides that
“should any dispute or difference arise between the
Company and the Union or its members as to the inter-
pretation or application of any of the provisions of this
Agreement or with respect to job working conditions . . . ,
the dispute or difference shall be settled through the
grievance procedure.” This is not an “explicit” waiver
of the right to sue under the Fair Labor Standards Act; it
is little different from the corresponding language in the
collective bargaining agreement in Wright. See 525 U.S. at
72-73. Most courts, moreover, have closed the question
that the Supreme Court left open in that case (the “might”
question) by holding, as we had done in Pryner, that
while an individual worker can waive his right to a
judicial remedy, a union cannot do so on his behalf. Pyett
v. Pennsylvania Building Co., 498 F.3d 88, 92-93 (2d Cir.
2007), certiorari granted under the name of Penn Plaza
LLC v. Pyett, No. 07-581 (U.S. Feb. 19, 2008); Rogers v. New
York University, 220 F.3d 73, 75-76 (2d Cir. 2000) (per
curiam); Plumley v. Southern Container, Inc., 303 F.3d 364,
No. 07-3053 9
373-74 (1st Cir. 2002); Air Line Pilots Association, Int’l v.
Northwest Airlines, Inc., 199 F.3d 477, 481-85 (D.C. Cir.
1999); contra, Eastern Associated Coal Corp. v. Massey, 373
F.3d 530, 533-34 (4th Cir. 2004). As we noted earlier, a
union is not the freely chosen agent of every member of
the bargaining unit (unless the vote for the union was
unanimous); nor is consent to be represented in col-
lective bargaining realistically the equivalent of consent
to the union’s waiving a worker’s individual statutory
rights.
Leahy, though, was a special case, as is this case, and
in both cases the dismissal of the FLSA suit can be recon-
ciled with Wright, Pryner, and the other cases that we
have cited. The plaintiffs in Leahy wanted us to rule that
“since some [police] officers on some days miss all or part
of their meal periods” because they are required to
work then, “all meal periods [are] compensable work.” 96
F.3d at 232. The plaintiffs in this case want us to rule that
because some Com Ed employees may sometimes do
some work at lunch, all Com Ed employees are entitled
to pay during their lunch break (overtime pay at that,
because the half-hour lunch break is on top of an eight-
hour workday). It is that argument, rather than the rejec-
tion of the same argument in Leahy, that is preposterous. As
in Leahy, the plaintiff class here is hopelessly heteroge-
neous. We noted this in discussing the call-out claim;
in regard to the mealtime claim, the abuse of the class-
action device (or “collective action,” as class suits under
29 U.S.C. § 216(b) are more commonly referred to) is even
more egregious; the class includes workers who have
no conceivable mealtime claim because they do not work
the day shift. The plaintiffs and the other members of the
class, or some of them, may have an FLSA claim that
they could press in an individual suit, but the filing of this
10 No. 07-3053
class action suggests that they have no stomach for pro-
ceeding case by case. If they are unwilling to file individual
suits, or create homogeneous classes in order to bring
proper class actions, then, since an essential condition of
maintaining an FLSA class action—that the members of
the class be “similarly situated” to one another, 29 U.S.C.
§ 216(b)—is not satisfied, their only recourse is to ask
the union to file grievance proceedings under the col-
lective bargaining agreement. We assume that this route
remains open, since the mealtime issue was not raised in
the previous arbitration.
The union will be able to insist in any such arbitration
that the arbitrator comply with the Fair Labor Standards
Act. If he rules that a particular Com Ed worker is re-
quired to work during mealtimes, but that it is such easy
work that it is undeserving of the minimum wage, let alone
of overtime, his decision will be set aside for “manifest
disregard” of the law. Wise v. Wachovia Securities, LLC,
450 F.3d 265, 268-69 (7th Cir. 2006). “[W]here a gov-
erning legal principle is well defined, explicit, and clearly
applicable to the case, and where the arbitrator ignored
it after it was brought to the arbitrator’s attention in a
way that assures that the arbitrator knew its controlling
nature,” his disregard of it is “manifest.” Goldman v.
Architectural Iron Co., 306 F.3d 1214, 1216 (2d Cir. 2002).
For “an arbitrator may not direct the parties to violate
the law.” George Watts & Son, Inc. v. Tiffany & Co., 248 F.3d
577, 580 (7th Cir. 2001).
Furthermore, the collective bargaining agreement in this
case, unlike the ones in Pryner and Wright, sets forth a
standard for the arbitrator to apply that is materially
identical to the statutory standard: if an employer re-
quires an employee to work during meal time, then that
time is not “time out” from “work.” Neither the statute
No. 07-3053 11
nor the collective bargaining agreement defines “work,”
but the Supreme Court has defined it as “physical or
mental exertion (whether burdensome or not) controlled
or required by the employer and pursued necessarily
and primarily for the benefit of the employer and his
business.” Tennessee Coal, Iron & Railroad Co. v. Muscoda
Local No. 123, 321 U.S. 590, 598 (1944); see Bernard v. IBP,
Inc. of Nebraska, 154 F.3d 259, 264-65 (5th Cir. 1998); Reich v.
Southern New England Telecommunications Corp., 121 F.3d
58, 63-65 (2d Cir. 1997). We are given no reason to sup-
pose that an arbitrator interpreting “work” in the col-
lective bargaining agreement would understand the
word to mean something different. If he finds that Com Ed
does not require its linemen to work during lunch, that
finding should be entitled to considerable weight in an
FLSA case, should a proper one be brought. “Although the
FLSA overrides contracts, in close cases it makes sense to
let private arrangements endure—for the less flexible
statutory approach has the potential to make everyone
worse off.” Dinges v. Sacred Heart St. Mary’s Hospitals, Inc.,
supra, 164 F.3d at 1059. The arbitrator is likely to have a
better understanding of the meaning of “work” in the
context of a specific bargaining relationship than a
court would have, cf. Tice v. American Airlines, Inc., 288
F.3d 313, 317-18 (7th Cir. 2002), and so if the statutory
and contractual standards are identical, the arbitrator’s
decision is entitled to consideration in a follow-on FLSA
case. That will mitigate though not eliminate the two-bites-
at-the-apple problem that arises when the standard in
the collective bargaining agreement is the same as that
in the Fair Labor Standards Act.
AFFIRMED.
USCA-02-C-0072—4-3-08