Flaherty et al v. Kanaway Seafoods, Inc.

Filing 77

ORDER RE ALL PENDING MOTIONS: granting 48 Motion for Summary Judgment; denied as moot 52 Motion to Certify a Question; denied as moot 54 Motion to Certify Class; denied as moot 56 Motion to Certify Class. Clerk to enter final judgment. Signed by Judge Sharon L. Gleason on 11/15/23. (RMC, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
CODY FLAHERTY, et al.,
Plaintiffs,
v.
KANAWAY SEAFOODS, INC.,

Case No. 3:22-cv-00155-SLG

Defendant.

ORDER RE ALL PENDING MOTIONS
Before the Court is Defendant Kanaway Seafoods, Inc. d/b/a Alaska General
Seafoods’ (hereinafter “AGS”) Motion for Summary Judgment on Plaintiffs’ “Closed
Campus” Claims at Docket 48.

Plaintiffs Cody Flaherty, Jerry Ross, Kegan

Flaherty, John Bauman, Elizabeth Patton, and Bryan Barlahan filed a response in
opposition at Docket 67, and AGS filed a reply at Docket 70. Plaintiffs filed a
supplemental brief at Docket 74 and AGS filed a response at Docket 75.
Additionally before the Court at Docket 52 is AGS’s Motion to Certify a Question
to the Alaska Supreme Court and to Stay Proceedings. Plaintiffs filed a response
in opposition at Docket 65, to which AGS replied at Docket 66. Also before the
Court at Docket 54 is Plaintiffs’ Motion for Certification of a Rule 23 Class Action.
AGS responded in opposition at Docket 62, to which Plaintiffs replied at Docket
69. And at Docket 56, Plaintiffs filed a Motion for Conditional Certification of a

FLSA Collective Action. AGS responded in opposition at Docket 59, and Plaintiffs
replied at Docket 68. The Court held oral argument on August 22, 2023.
BACKGROUND
This lawsuit arises from certain policies that AGS put into place in April 2020
to address the COVID-19 pandemic. AGS is a seafood processing company that
purchases fresh salmon from independent fisherman and processes it to produce
canned, fresh, and frozen salmon. AGS operates two seasonal fish processing
plants in Naknek and Ketchikan, Alaska.1 AGS also operates a seasonal fish camp
in Egegik, Alaska.2
AGS hires hourly employees to operate its processing facilities.3 As relevant
to this lawsuit, AGS employees work as either machinists, seafood processors, or
members of the beach gang.4 Members of the beach gang are responsible for
dock repair and putting boats in the water.5 The employees who work at AGS in
Naknek have been unionized for decades.6 During the relevant timeframe, there
was a machinist union, a processor union, and a beach gang union; each union

1

Docket 49 at ¶ 4.

2

Docket 49 at ¶ 5.

3

See, e.g., Docket 55-14 at 3; Docket 55-15 at 3; Docket 55-16 at 3.

Docket 51-1 at 10; Docket 51-2 at 10; Docket 51-3 at 8; Docket 51-4 at 5; Docket 51-5 at 7;
Docket 51-7 at 4.
4

5

Docket 51-7 at 4.

6

Docket 49 at ¶ 22.

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negotiated a unique Collective Bargaining Agreement (“CBA”).7
On March 19, 2020, the U.S. Department of Homeland Security,
Cybersecurity & Infrastructure Security Agency identified seafood processing
facilities, such as AGS, as a critical infrastructure industry and directed these
industries “to ensure continued operations” in a manner that “appropriately
balance[d] public safety while ensuring the continued delivery of critical
infrastructure services and functions.”8 The next day, the State of Alaska similarly
identified seafood processing as a critical infrastructure industry.9 To address the
safety concerns posed by the continued operation of critical infrastructure
industries during the COVID-19 pandemic, both the state and federal governments
directed these industries to create plans for safe operation.10
The mandate for AGS to continue operating was complicated by the fact that
two of its facilities were in Bristol Bay. Indigenous people in Bristol Bay lost 30 to
40 percent of their population during the 1919 Spanish flu epidemic.11 As a result,
7

Docket 51-15; Docket 51-16; Docket 51-17.

8

Docket 50-3 at 2-3, 7.

9

Docket 50-4 at 4.

Docket 50-5 at 2 (State of Alaska COVID-19 Health Mandate 010 required critical
infrastructure to submit a plan “outlining how [they would] avoid the spread of COVID-19 and not
endanger the lives of the communities in which [they] operate” and explained that failure to
follow the mandate was “punishable by a fine of up to $25,000, or imprisonment of not more
than one year, or both.”); Docket 49-1 at 2-3 (Interim Guidance from the CDC, OSHA, and FDA
directed “seafood processing worksites [to] develop[] plans to continue operations while COVID19 outbreaks occur” by “work[ing] directly with appropriate state, local, tribal, and territorial
(SLTT) public health officials and occupational safety and health professionals.”).
10

Ash Adams, COVID-19 threatened Alaska’s fishermen. Here’s how they persevered.,
National Geographic (Aug. 10, 2021), https://www.nationalgeographic.com/culture/article/covid11

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there were heightened concerns regarding the potential impact of COVID-19 on
the local population. On April 6, 2020, the Mayor of the City of Dillingham and the
First Chief of the Curyung Tribal Council sent a letter to the Governor of Alaska
asking him to consider closing the Bristol Bay commercial salmon fishery because
of the significant risks posed by the influx of seasonal workers to the remote area.12
To determine how the seafood industry could safely operate in Bristol Bay,
AGS joined the Naknek/King Salmon Infectious Disease Taskforce in March 2020
along with medical providers, state and local governments, tribal leaders, and other
seafood industry operators in Naknek and King Salmon.13

The taskforce

developed a “guideline list of safety protocols” for the seafood industry, which
included the recommendation that these companies operate as a “closed campus,”
meaning that visitors would be prohibited from the plant and employees would be
restricted to company property.14
AGS developed a May 2020 Workforce Protection Plan for Naknek and a
May 2020 Workforce Protection Plan for Ketchikan.15

Under the heading

“Protecting the Public,” the plans stated that employees residing in company
housing were required to remain on the property and warned that violations would

19-threatened-alaskas-fishing-industry-but-fishermen-fought-back--and-won.
12

Docket 51-14 at 2-3.

13

Docket 49 at ¶ 12.

14

Docket 49-3 at 2.

15

Docket 50-7; Docket 50-8.

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result in further training and disciplinary action.16 To enforce this closed campus
policy, AGS Naknek erected a fence around the property, and a private security
company patrolled to ensure compliance.17
AGS implemented a closed campus policy at its Naknek location from April
25, 2020, to June 15, 2022.18 Jerry Ross, Cody Flaherty, and Kegan Flaherty (the
“Named Plaintiffs”), and Bryan Barlahan, Elizabeth Patton, and John Bauman (the
“Opt-In Plaintiffs”) were all subject to AGS’s closed campus policy at some point
during the relevant time period. Each of the Named and Opt-In Plaintiffs was also
a member of a union subject to a CBA during this time.19
Mr. Ross worked as a port engineer at the Naknek location in 2021 and 2022
and at the Ketchikan location in 2021.20 However, Mr. Ross testified that the closed
campus policy did not apply to him when he worked at the Ketchikan location in
2021 because his ”position there was a little different” and he could come and go
from the facility when he was not working.21 Cody Flaherty worked as a machinist
for AGS at the Naknek location in 2020, 2021, and 2022.22 Kegan Flaherty also

16

Docket 50-7 at 4; Docket 50-8 at 4.

17

Docket 49 at ¶¶ 15, 17; Docket 55-12 (photos of the fence and signs).

18

Docket 49 at ¶ 7.

19

Docket 51-1 at 23-24; Docket 51-2 at 33; Docket 51-3 at 38; Docket 51-18 at 2, 4-5.

20

Docket 51-1 at 10, 16, 19, 23.

21

Docket 51-1 at 21-22.

22

Docket 51-2 at 10, 62.

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worked as a machinist for AGS at the Naknek location in 2020, 2021, and 2022.23
Ms. Patton worked as a processor at the Naknek location in 2020 and as a lead
processor from 2020 to 2022.24 Mr. Barlahan also worked as a processor at the
Naknek location in 2020 and 2021 and as a lead processor in 2022.25 Mr. Bauman
worked on the beach gang at the Egegik fish camp in 2020, at both Naknek and
Egegik in 2021, and at Naknek in 2022.26
Named Plaintiffs filed this lawsuit on July 8, 2022, alleging that AGS violated
the Fair Labor Standards Act, 29 U.S.C. §§ 201-219, the Portal-to-Portal Act, 29
U.S.C. §§ 251-262 (collectively, the “FLSA”), and the Alaska Wage and Hour Act,
Alaska Statutes (“AS”) 23.10.050–23.10.150 (“AWHA”) by failing to pay
appropriate overtime compensation when the closed campus policy was in place.
Plaintiffs brought the lawsuit individually and as a collective action pursuant to 29
U.S.C. § 216(b) and a class action pursuant to the AWHA.27 After initiating this
lawsuit, Plaintiffs filed First and Second Amended Complaints.28
In their Second Amended Complaint, Plaintiffs allege that AGS’s “‘closed
campus’ policy precluded Plaintiffs from leaving [AGS] premises, having guests,

23

Docket 51-3 at 8-9.

24

Docket 51-4 at 5.

25

Docket 51-5 at 7.

26

Docket 51-7 at 4-5, 21.

27

Docket 1 at ¶¶ 1-3; see also Docket 54; Docket 56.

28

Docket 33; Docket 42.

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spending time with their families, or enjoying the surrounding environments.”29 As
such, “Plaintiffs were effectively confined to their workstation during on-clock
worktime and to their dorm room during off-clock hours” and “were on-call during
their off-the-clock hours.”30 Plaintiffs contend that “[d]uring their off-the-clock time,
[they] were not able to use time effectively for their own personal purposes” and,
“on numerous instances[,] Plaintiffs were called to action at all times of the day and
night but were not compensated for performing work off-the-clock.”31 Further,
“Plaintiffs were deprived of a reasonable night’s sleep of at least five (5) hours of
uninterrupted sleep,” and “[t]here was not an implied or express agreement
between Plaintiffs and Defendant to exclude sleep time.”32

Plaintiffs seek

compensation for the time they worked at AGS’s facilities while subjected to a
closed campus, from April 2020 to June 2022.33
Pursuant to the Scheduling and Planning Order, discovery has been split

29

Docket 42 at ¶ 19.

30

Docket 42 at ¶¶ 20, 23.

Docket 42 at ¶ 24. Plaintiffs were compensated for their regular shifts, which consistently
included overtime hours. See Docket 51-21 (C. Flaherty’s time sheets indicating regular 11 to
18-hour shifts in 2020 and 2021); Docket 51-22 (K. Flaherty’s time sheets indicating regular 11
to 19-hour shifts in 2020 and 2021); Docket 51-7 at 6 (Bauman testifying he “clock[ed] in at 8
a.m. and then [was] off the clock at 9 p.m.”). Plaintiffs were also compensated for overtime
when they were called out to work after their shifts ended. See Docket 51-1 at 21-23, 25, 27-28
(Ross); Docket 51-2 at 47, 65 (C. Flaherty); Docket 51-3 at 39 (K. Flaherty); Docket 51-7 at 1516 (Bauman). Therefore, the time at issue in this case is the remainder of the 24-hour day
when Plaintiffs were off their regularly scheduled shifts and were not responding to a call. See
Docket 51-3 at 40.
31

32

Docket 42 at ¶¶ 26-27.

33

Docket 76 at 2 (Oral Arg. Tr.).

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into two phases. Phase I was limited to “(1) the merits of the ‘closed campus’
claim; (2) whether or to what extent the determination of Plaintiffs’ claims will
require an interpretation or analysis of certain labor agreements between the
Parties; and (3) whether Plaintiffs are similarly situated to the putative collective
action members.”34 Phase I of discovery was completed on February 14, 2023.35
Thereafter, AGS timely filed a Motion for Summary Judgment and a Motion to
Certify Question to Alaska Supreme Court and to Stay Proceedings.36 Plaintiffs
also timely filed a Motion to Certify Class of a Rule 23 Class Action and a Motion
to Certify Class of a FLSA Collective Action.37

All motions are now ripe for

consideration.
JURISDICTION
The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331
because a portion of Plaintiffs’ claims are based on the FLSA. The Court has
supplemental jurisdiction over Plaintiffs’ AWHA claims pursuant to 28 U.S.C. §
1367.

34

Docket 24 at 2.

35

Docket 34.

36

Docket 48; Docket 52.

37

Docket 54; Docket 56.

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DISCUSSION
I.

Motion for Summary Judgment
AGS has moved for summary judgment, alleging that all of Plaintiffs’ claims

are precluded and preempted by federal law and lack merit.38 Federal Rule of Civil
Procedure 56(a) directs a court to “grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.”

When considering a motion for summary

judgment, a court views the facts in the light most favorable to the non-moving
party and draws “all justifiable inferences” in the non-moving party’s favor.39
“The party moving for summary judgment bears the initial burden of
demonstrating the absence of a genuine issue of fact for trial.”40 However, “[w]hen
the nonmoving party has the burden of proof at trial, the moving party need only
point out ‘that there is an absence of evidence to support the nonmoving party’s
case.’”41 If the movant meets this burden, the non-moving party must demonstrate
“specific facts showing that there is a genuine issue for trial.”42 The non-moving
party may not rely on “mere allegations or denials”; rather, to reach the level of a

38

Docket 48-1.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co.,
398 U.S. 144, 158-59 (1970)).
39

Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)).
40

41

Id. (quoting Celotex Corp., 477 U.S. at 325).

42

Celotex Corp., 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)).

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genuine dispute, the evidence must be such “that a reasonable jury could return a
verdict for the nonmoving party.”43
As a preliminary matter, AGS requests that the Court address summary
judgment prior to class certification to avoid certifying a class if Plaintiffs have a
meritless claim.44 In response, Plaintiffs ask the Court to first decide the class
certification motions and to stay the summary judgment ruling until Phase II of
discovery is complete.45
The Ninth Circuit has held that “it is within the discretion of the district court”
to decide a motion for summary judgment before ruling on class certification
“where considerations of fairness and economy” justify such a procedure “and
where the defendant consents to the procedure.”46 AGS’s motion for summary
judgment that is now before the Court is a dispositive motion concerning Phase I
issues that was filed at the close of Phase I of discovery in accordance with the
Scheduling and Planning Order that is ripe for determination at this time.47

43

Anderson, 477 U.S. at 248.

44

Docket 48-1 at 29-30.

45

Docket 67 at 16-18.

46

Wright v. Schock, 742 F.2d 541, 545-46 (9th Cir. 1984).

Docket 24 at 2. See also Corbin v. Time Warner Ent.-Advance/Newhouse P’ship, 821 F.3d
1069, 1085 (9th Cir. 2016) (“If the . . . claim is without merit as applied to [the plaintiff], it follows
that the district court need not inquire as to whether that meritless claim should form the basis of
a class action.” (citations omitted)).
47

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a. Preemption and Preclusion
All of the Named and Opt-In Plaintiffs in this case were parties to CBAs that
governed the terms and conditions of their employment with AGS during the
pandemic, including their wages, overtime, and break time.48 AGS maintains that
the Court will need to interpret these CBAs to resolve Plaintiffs’ claims that they
are entitled to compensation under federal and state law for time spent waiting to
work or sleeping because the CBAs define what constitutes compensable work.
AGS points out that the interpretation of labor agreements, such as CBAs, is
reserved exclusively for federal labor arbitrators in accordance with § 301 of the
Labor Management Relations Act (“LMRA”).49

Indeed, the CBAs for the

machinists, processors, and members of the beach gang all contained grievance
and arbitration procedures.50 AGS accordingly contends that Plaintiffs’ FLSA and
AWHA claims are preempted and precluded by the LMRA and must be dismissed
on summary judgment.51
AGS relies on Columbia Export Terminal, LLC v. International Longshore &
Warehouse Union52 to support its claim that the LMRA precludes and preempts

48

Docket 51-1 at 23-24; Docket 51-2 at 33; Docket 51-3 at 38; Docket 51-18 at 2, 4-5.

49

Docket 48-1 at 30-31.

Docket 51-15 at 22 (mandatory arbitration procedure for machinists); Docket 51-16 at 14
(processors have a mechanism for arbitration, but may pursue any mutually agreed upon
procedure); Docket 51-17 at 16-17 (mandatory arbitration procedure for beach gang).
50

51

Docket 48-1 at 30-40.

52

23 F.4th 836 (9th Cir. 2022).

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Plaintiffs’ FLSA and AWHA claims.53 In Columbia Export Terminal, the Ninth
Circuit highlighted two key principles of preemption under the LMRA. The first is
that “[o]n its face, § 301 reads as a jurisdictional statute, and it ‘contains no express
language of preemption, [but] the Supreme Court has long interpreted the
[provision] as authorizing federal courts to create a uniform body of federal
common law to adjudicate disputes that arise out of labor contracts.’”54 For this
reason, the Supreme Court has held that the LMRA impliedly preempts state law.55
The second key principle is that “the arbitrator, not the court, [] has the
responsibility to interpret [a] labor contract in the first instance.”56 Accordingly, §
301 preemption “is designed to ensure ‘specific performance of promises to
arbitrate grievances under collective bargaining agreements.’”57 In accordance
with these principles, the Ninth Circuit has “applied the preemptive effect of § 301
to all ‘state law claims grounded in the provisions of a CBA or requiring
interpretation of a CBA.’”58
The question at issue in Columbia Export Terminal was whether § 301 of

53

Docket 48-1 at 30.

Columbia Exp. Terminal, 23 F.4th at 841 (first alteration added, second and third alterations in
original) (quoting Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1151 (9th Cir. 2019)).

54

55

Id. (citing Teamsters v. Lucas Flour Co., 369 U.S. 95, 104 (1962)).

56

Id. (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985)).

57

Id. at 842 (quoting Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 451 (1957)).

Id. at 841 (quoting Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 1032 (9th Cir.
2016)).
58

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the LMRA also precludes claims arising under federal law.59 More specifically, the
plaintiff brought a claim pursuant to the Racketeer Influenced and Corrupt
Organizations Act (“RICO”) alleging that the defendants “conspired to fraudulently
furnish timesheets reporting hours that were not actually worked and, as a result,
overbilled [the plaintiff] by more than $5.3 million.”60 The defendants filed a motion
to dismiss, contending that the RICO claims were precluded under § 301 of the
LMRA “because resolution of the claims required interpretation of the underlying
CBA, which require[d] exhaustion of the agreement’s grievance procedures.”61
The Ninth Circuit held that “a RICO claim is precluded by § 301 of the LMRA when
the right or duty upon which the claim is based is created by a CBA or resolution
of the claim substantially depends on analysis of a CBA.”62
AGS contends that Columbia Export Terminal stands for the proposition that
“federal and state claims are preempted [or precluded] if they seek to vindicate a
right ‘created by the [CBA] itself’ or if the claim ‘is substantially dependent on
analysis of the CBA.’”63 However, the Ninth Circuit in Columbia Export Terminal

Although sometimes used interchangeably, “preemption doctrine derives from the Supremacy
Clause of the Constitution and concerns the primacy of federal laws” over state laws, and
preclusion determines whether one federal law precludes action under another federal law. See
Felt v. Atchison, Topeka & Santa Fe R.R. Co., 60 F.3d 1416, 1418-19 (9th Cir. 1995) (alteration
omitted).
59

60

Columbia Exp. Terminal, 23 F.4th at 840.

61

Id.

62

Id. at 844.

63

Docket 70 at 6-7 (emphases omitted) (quoting Columbia Exp. Terminal, 23 F.4th at 842).

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recognized a limitation of its holding that is relevant in this case. This limitation
comes from the Supreme Court’s decision in Atchison, Topeka & Santa Fe Railway
Co. v. Buell, which “reiterated the general rule in favor of compelling arbitration in
labor disputes, while recognizing an exception for claims based on federal statutes
that contain specific substantive guarantees for workers.”64 In Buell, the Supreme
Court held that the Federal Employers Liability Act provided one such substantive
guarantee for workers and was not precluded by a statute similar to the LMRA: the
Railway Labor Act.65 Similarly, the Supreme Court has held that submission of a
claim to arbitration did not preclude claims brought pursuant to other federal
statutes providing specific substantive guarantees to workers, including § 1983
claims, Title VII claims, and, as relevant here, FLSA claims.66
The Ninth Circuit in Columbia Export Terminal explained that the Buell
exception did not apply to the facts before it because the claims were brought by
an employer, “and the federal statute at issue, RICO, does not establish

Columbia Exp. Terminal, 23 F.4th at 848 (citing Atchison, Topeka & Santa Fe R.R. Co. v.
Buell, 480 U.S. 557, 565 (1987)).

64

Buell, 480 U.S. at 565-67 (noting that the “FELA not only provides railroad workers with
substantive protection against negligent conduct that is independent of the employer’s
obligations under its collective-bargaining agreement, but also affords injured workers a remedy
suited to their needs,” damages).
65

Id. at 564-65 (first citing McDonald v. City of West Branch, 466 U.S. 284 (1984) (CBA
arbitration decision does not preclude § 1983 claim); then citing Barrentine v. Ark.-Best Freight
Sys., Inc., 450 U.S. 728 (1981) (CBA arbitration decision does not preclude FLSA claim); and
then citing Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) (CBA arbitration decision does
not preclude Title VII claims)).

66

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substantive guarantees for workers.”67

By contrast, this case is brought by

employees, not an employer. Moreover, Plaintiffs are invoking federal and state
statutes that provide nonnegotiable substantive rights to individual workers: the
FLSA and AWHA. AGS nonetheless urges the Court to follow cases from the Third
and Sixth Circuits that were cited favorably in Columbia Export Terminal and “held
that the LMRA precludes FLSA claims.”68
The Court declines to follow this out-of-circuit precedent, however, because
there is binding Ninth Circuit authority that governs the outcome of this issue. In
Albertson’s, Inc. v. United Food & Commercial Workers Union, AFL-CIO & CLC,
the Ninth Circuit considered whether members of a union had to submit their claims
to arbitration before bringing suit under the FLSA to collect wages for time worked
when Albertson’s allegedly required its employees to perform certain work without
punching the time clock.69

The Ninth Circuit explained that “the rights of

employees arising out of the collective bargaining agreement are separate and
distinct from those arising out of a statute such as the FLSA.”70 Therefore, the
Ninth Circuit held “that employees covered by a collective bargaining agreement
are entitled to take their FLSA claims to court regardless of whether those claims
67

Columbia Exp. Terminal, 23 F.4th at 848.

Docket 70 at 10 (first quoting Columbia Exp. Terminal, 23 F.4th at 843 n.3; then citing Vadino
v. A. Valey Eng’rs, 903 F.2d 253 (3d Cir. 1990); and then citing Martin v. Lake Cnty. Sewer Co.,
269 F.3d 673 (6th Cir. 2001)).
68

69

157 F.3d 758, 759-60 (9th Cir. 1998).

70

Id. at 760 (citing Barrentine, 450 U.S. at 737).

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may also be covered by the grievance-arbitration procedure.”71

In Columbia

Export Terminal, the Ninth Circuit did not mention, let alone overrule, the holding
in Albertson’s.72 The Court will follow Albertson’s and concludes that Plaintiffs’
FLSA claims are not precluded by the LMRA.
Having decided that Plaintiffs’ federal claims are not precluded, the Court
now considers whether Plaintiffs’ AWHA claim is preempted by the LMRA.73
Plaintiffs allege they are owed overtime pay pursuant to AS 23.10.060 for “all the
time they spent being subjected to the ‘closed campus’ policy.”74 AS 23.10.060
provides that an employee is entitled to overtime compensation at a rate of one
and one-half times the regular rate of pay for hours worked in excess of eight hours
a day and in excess of 40 hours a week.75 The Alaska Administrative Code (“AAC”)
explains further that:
[w]hen computing an employee’s hours for the purpose of determining
overtime, the employer shall count all hours the employee worked
during that week including periods of “on call” and “standby or waiting
71

Id. at 762.

72

See 23 F.4th 836.

There are substantial similarities between the AWHA and the FLSA. Indeed, the Alaska
Supreme Court has “recognized that the AWHA is based on the [FLSA],” although “[t]he two
Acts are not identical”; for example, the AWHA “imposes on employers a higher standard of
overtime pay.” McKeown v. Kinney Shoe Corp., 820 P.2d 1068, 1070 n.2 (Alaska 1991)
(emphasis in original) (citations omitted). Nonetheless, Alaska courts “have found the federal
court interpretations of the FLSA helpful in interpreting consistent aspects of the AWHA.” Id.
(citation omitted). Considering the similarities between the AWHA and the FLSA, the Court’s
analysis of whether the LMRA preempts the AWHA is appropriately guided by the foregoing
analysis that the LMRA does not preclude FLSA claims.
73

74

Docket 42 at ¶¶ 49, 52.

75

AS 23.10.060(a), (b).

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time” required for the convenience of the employer which were a
necessary part of the employee’s performance of the employment.76
Plaintiffs contend that, when the “closed campus” policy was in place, all time spent
“wherein the employees were required to remain on Defendant’s property” and
“were effectively restricted to their rooms and not allowed guests” constituted on
call or waiting time pursuant to Alaska law, for which they are entitled to overtime
compensation because they “could not use their time effectively for their own
purposes.”77
When considering whether the LMRA preempts a state law claim, the Ninth
Circuit has articulated the following two-step inquiry: First, a court considers
“whether the asserted cause of action involves a right conferred upon an employee
by virtue of state law, not by a CBA. If the right exists solely as a result of the CBA,
then the claim is preempted . . . .”78 If the right underlying the state law claim
“exists independently of the CBA,” then a court “moves to the second step” and
asks if the right “is nevertheless ‘substantially dependent on analysis of a
collective-bargaining agreement.’”79 To determine whether a state law claim is
substantially dependent on the terms of a CBA, a court considers whether the

76

8 AAC § 15.100(c).

77

See Docket 67 at 48-51 (citing 8 AAC § 15.100(c)); Docket 42 at ¶ 52.

Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 1032 (9th Cir. 2016) (quoting
Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1059 (9th Cir. 2007)).
78

79

Id. (quoting Burnside, 491 F.3d at 1059).

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claim can be resolved by looking to—as opposed to interpreting—the CBA,
although this “‘look to’/‘interpret’ distinction is ‘not always clear or amenable to a
bright-line test.’”80 If there is substantial dependence, then the state law claim is
preempted.81
The Supreme Court has cautioned, however, that Ҥ 301 cannot be read
broadly to pre-empt nonnegotiable rights conferred on individual employees as a
matter of state law.”82 For example, in Livadas v. Bradshaw, the Supreme Court
held that a claim brought pursuant to a California law “requir[ing] employers to pay
all wages due immediately upon an employee’s discharge” was not preempted by
§ 301.83 The Supreme Court explained that the only issue raised was whether the
employer “‘willfully fail[ed] to pay’ [the employee’s] wages promptly upon
severance,” and that this was “a question of state law, entirely independent of any
understanding embodied in the collective-bargaining agreement between the
union and the employer.”84 In other words, “the primary text” for deciding whether
the employee was entitled to compensation “was not the Food Store Contract, but

Burnside, 491 F.3d at 1060 (quoting Cramer v. Consol. Freightways Inc., 255 F.3d 683, 691
(9th Cir. 2001)).

80

81

Kobold, 832 F.3d at 1033.

82

Livadas v. Bradshaw, 512 U.S. 107, 123 (1994).

83

Id. at 110, 125.

84

Id. at 124-25 (first alteration in original).

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a calendar.”85
AGS concedes that Plaintiffs’ state law claims are not preempted at step one
of the analysis; instead, AGS contends that Plaintiffs’ claims are preempted by §
301 of the LMRA because the resolution of their claims is substantially dependent
on the analysis of the CBAs.86

This is because the CBAs “contain detailed

provisions spelling out the precise circumstances concerning when and how
overtime . . . was to be paid.”87 For example, the Machinist CBA contains the
following relevant provisions:
Workday: . . . When an employee has terminated a shift, they shall
not be required to start work again until a four (4) hour rest period has
elapsed, unless they receive overtime pay (separate and apart from
season’s guarantee). Eight (8) hours within nine (9) consecutive
hours between 6:00 A.M. and 6:00 P.M. shall constitute a day’s work
. . . .88
....
Call Time: When employees are required to report for work at
overtime outside of their regular shifts, they shall receive a minimum
of two (2) hours for each call, unless work continues into the regular
working day.89

85

Id. at 124.

Docket 48-1 at 30 (acknowledging that “these claims do not expressly arise from CBAs”), 37
(“Applying the two-part test here, Plaintiffs’ FLSA and AWHA claims are precluded/preempted by
Section 301 because resolution of their ‘closed campus’ claim is substantially dependent on
interpretation of their respective CBAs.”).
86

87

Docket 48-1 at 32.

88

Docket 51-15 at 8.

89

Docket 51-15 at 12.

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AGS contends that resolving the question of whether Plaintiffs are entitled to
compensation for all of the time spent on the closed campus will “necessarily
require interpretation of the Plaintiffs’ respective CBAs to determine whether, and
to what extent, closing the campus to prevent the spread of COVID-19 modified
the clearly bargained for overtime, call time, and time worked provisions in the
CBAs.”90
Plaintiffs are not claiming, however, that the CBAs were modified to entitle
them to compensation for all time spent on the closed campus. Indeed, the
Machinist CBA that was in place while the closed campus policy was in effect
suggests that the parties did not intend to compensate Plaintiffs for this time. As
AGS points out, the “Workday” and “Call Time” provisions rely on the term “work”
to trigger compensation.91 Instead, Plaintiffs maintain that, irrespective of what the
CBAs say, they are entitled to compensation for time spent on the closed campus
because AS 23.10.060 accords them a right to overtime compensation and 8 AAC
§ 15.100(c) extends the right to overtime compensation for time spent waiting to
work.92 In other words, the statutory entitlement to overtime compensation cannot
be bargained away in a CBA and, to the extent that the Machinist CBA may have
denied Plaintiffs this compensation, the CBA violates AS 23.10.060 and 8 AAC §

90

Docket 48-1 at 37.

91

Docket 48-1 at 32.

92

Docket 67 at 27-29, 46.

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15.100(c).
In Norcon, Inc. v. Kotowski, the Alaska Supreme Court considered a similar
issue: whether § 301 of the LMRA preempted claims brought pursuant to AS
23.05.140.93 Both AS 23.05.140 and the AWHA are part of Title 23 of the Alaska
Statutes, entitled “Labor and Workers’ Compensation.” AS 23.05.140 requires an
employer to pay “all wages, salaries, or other compensation . . . within three
working days” of an employee’s termination, regardless of the cause of
termination, and imposes a penalty on employers who do not comply.94 The
Alaska Supreme Court explained that “Alaska Statute 23.05.140 confers on an
employee an independent statutory right that requires no CBA interpretation to
adjudicate.”95 The court held that the plaintiff’s claims that she was owed “unpaid
wages and overtime pay she never received . . . could be adjudicated without
reference to the CBA,” so these claims were not preempted by the LMRA.96 To
the extent that the parties disagreed “on the applicable wage rate” or whether the
plaintiff was “owed extended post-discharge pay or other special payments under
the CBA,” however, the Alaska Supreme Court held that “such claims would be
pre-empted by the LMRA since their adjudication would require interpretation of

93

971 P.2d 158 (Alaska 1999).

94

AS 23.05.140.

95

Norcon, Inc., 971 P.2d at 168.

96

Id.

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the CBA.”97 In sum, a claim brought pursuant to Title 23 concerning Labor and
Workers’ Compensation is not preempted by the LMRA if the resolution of the
claim does not require interpretation of a CBA.
Much like the statute at issue in Norcon, Inc., the AWHA “confers on an
employee an independent statutory right” to overtime pay for time spent on call or
waiting to work “that requires no CBA interpretation to adjudicate.”98 The Court
considers the record evidence illustrating how Plaintiffs spent their time on the
closed campus outside of regular working hours to determine whether Plaintiffs
are owed overtime compensation for all time spent on the closed campus pursuant
to the AWHA. And the Court only consults the relevant portions of the CBAs to
determine whether the CBAs included Plaintiffs’ waiting time as compensable
working time.99
In sum, Plaintiffs’ FLSA claim is not precluded and Plaintiffs’ AWHA claim is
not preempted by § 301 of the LMRA.

The Court does not grant summary

judgment on this basis.
b. Fair Labor Standards Act
If an employee works more than 40 hours during a workweek, the FLSA

97

Id.

98

See id.

See Livadas, 512 U.S. at 124 (“[W]hen the meaning of contract terms is not the subject of
dispute, the bare fact that a collective-bargaining agreement will be consulted in the course of
state-law litigation plainly does not require the claim to be extinguished[.]” (citation omitted)).

99

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requires his employer to pay him for the additional hours “at a rate not less than
one and one-half times the regular rate at which he is employed.”100
i. Waiting Time
Pursuant to 29 C.F.R. § 785.14, “waiting time” may be compensable hours
worked. During an employee’s waiting time, “facts may show that the employee
was ‘engaged to wait,’ which is compensable, or they may show that the employee
‘waited to be engaged,’ which is not compensable.”101
Whether waiting time is time worked under the [FLSA] . . . involves
“scrutiny and construction of the agreements between particular
parties, appraisal of their practical construction of the working
agreement by conduct, consideration of the nature of the service, and
its relation to the waiting time, and all of the circumstances.”102
In the Ninth Circuit, “the two predominant factors in determining whether an
employee’s on-call waiting time is compensable overtime are (1) the degree to
which the employee is free to engage in personal activities; and (2) the agreements
between the parties.”103 To “gaug[e] the extent to which employees could pursue
personal activities,” courts apply the Owens factors, which evaluate
(1) whether there was an on-premises living requirement; (2) whether
there were excessive geographical restrictions on employee’s
movements; (3) whether the frequency of calls was unduly restrictive;
(4) whether a fixed time limit for response was unduly restrictive; (5)
100

29 U.S.C. § 207(a)(1).

Owens v. Loc. No. 169, Ass’n of W. Pulp & Paper Workers, 971 F.2d 347, 350 (9th Cir. 1992)
(quoting Skidmore v. Swift & Co., 323 U.S. 134, 137 (1944)).
101

102

29 C.F.R. § 785.14 (quoting Skidmore, 323 U.S. at 137).

Brigham v. Eugene Water & Elec. Bd., 357 F.3d 931, 936 (9th Cir. 2004) (internal quotation
marks and citation omitted).
103

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whether the on-call employee could easily trade on-call
responsibilities; (6) whether use of a pager could ease restrictions;
and (7) whether the employee had actually engaged in personal
activities during call-in time.104
“Because ‘no one factor is dispositive,’ a court should balance the factors
permitting personal pursuits against the factors restricting personal pursuits to
determine whether the employee is so restricted that he is effectively engaged to
wait.”105 “Whether and to what extent employees are able to use on-call time for
personal activities is a question of fact.”106 “However, whether the limitations on
the employees’ personal activities while on-call are such that on-call waiting time
would be considered compensable overtime under the FLSA is a question of law .
. . .”107
AGS asserts that Plaintiffs are not entitled to overtime compensation even
though they were required to remain on AGS’s campus during the pandemic
because they were not actually working during the hours in question, and the
Owens factors indicate that Plaintiffs were waiting to be engaged, not engaged to
wait.108 Plaintiffs counter that the uncompensated remainder of the 24-hour day
was compensable overtime because the Owens factors show they were engaged

104

Id. (quoting Owens, 971 F.2d at 351).

Berry v. County of Sonoma, 30 F.3d 1174, 1183 (9th Cir. 1994) (alteration omitted) (quoting
Owens, 971 F.3d at 351).
105

106

Id. at 1180 (citations omitted).

107

Id. (citations omitted).

108

Docket 48-1 at 44-49.

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to wait and there was no agreement to exclude those hours from compensable
time.109
As to the first Owens factor, it is undisputed that there was an on-premises
living requirement at the Naknek facility pursuant to the closed campus policy.110
And, regarding the second factor, there was a geographical restriction on Plaintiffs’
movements in that they were unable to leave the 14-acre AGS Naknek campus.111
However, whether this restriction was “excessive” is less clear. Considering that
the closed campus policy was imposed during a global pandemic to comply with
federal, state, and local guidance and in an effort to keep employees and the
surrounding community safe from COVID-19, it is debatable whether the
geographic restriction was excessive. Plaintiffs could roam the 14-acre site, and
no AGS policy mandated that they spend their off-shift time confined to their
rooms.112 In 2021, Mr. Ross left campus regularly to drive to another AGS worksite
and to pick up food from Naknek restaurants.113 However, the remaining Plaintiffs

109

Docket 67 at 39-46.

110

Docket 43 at ¶¶ 19, 21; Docket 51-15 at 14; Docket 51-16 at 9-10.

Docket 49 at ¶¶ 15-16 (noting that “AGS Naknek erected a fence and placed security at its
gate to the Naknek property to ensure compliance with the ‘closed campus’ restrictions” and that
the campus “is approximately 14 acres”).
111

Docket 51-2 at 24 (C. Flaherty testifying that he was allowed to walk or ride his ATV around
campus); Docket 51-3 at 25 (K. Flaherty testifying that he drove his ATV on campus to and from
work and that he could walk around outside); Docket 51-4 at 21 (Patton testifying that she could
walk around campus); Docket 51-7 at 7 (Bauman testifying that he could walk around campus
but that “it was frowned upon, you know, socializing and coming into contact with other people”).
112

113

Docket 51-1 at 16-17.

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did not leave the campus during their off-shift time.114 Drawing the reasonable
inference in Plaintiffs’ favor that the geographical limitation was excessive, the first
two Owens factors weigh in favor of a finding that Plaintiffs were not free to engage
in personal activities during their waiting time.
However, other Owens factors weigh in favor of finding that Plaintiffs were
free to engage in personal activities. Regarding the third factor—whether the
frequency of calls to work was unduly restrictive—the record shows that Plaintiffs
were called infrequently—less than a handful of times over three seasons. Mr.
Ross was called back three to four times in 2021 and two to three times in 2022,
or about once a month over a three-month fishing season.115 Cody Flaherty was
called back to work “[p]otentially up to five times” in total during the 2020, 2021,
and 2022 seasons, or about once every other month.116 Kegan Flaherty was not
called back at all in 2020, 2021, or 2022.117 Mr. Bauman testified that he was
called back 40-60 times in 2020 at Egegik and 20-25 times in 2021 at Naknek.118
However, Mr. Bauman’s time sheets showed only four call backs in 2020 and six
Docket 51-2 at 22 (C. Flaherty testifying that he was “never allowed to leave”); Docket 51-3
at 27 (K. Flaherty testifying that he did not leave campus at all in 2021 except to perform work
on a barge for AGS over three or four days); Docket 51-4 at 10 (Patton testifying that she was
not allowed to leave campus to go to the store); Docket 51-7 at 7 (Bauman testifying that he
was unable to “go out and visit [his] friends, stretch [his] legs, relax, take in the scenery”).
114

115

Docket 51-1 at 18, 23.

Docket 51-2 at 39, 62 (recounting two to three callbacks in 2020, one callback in 2021, and
two callbacks in 2022).
116

117

Docket 51-3 at 23, 29, 34, 53.

118

Docket 51-7 at 14.

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call backs in 2021, or about twice a month.119
In Brigham v. Eugene Water & Electric Board, the utility company’s
employees were required to live on the company’s remote property and work 24hour on call shifts.120 The employees were actually called out on average once or
twice a month.121 The Ninth Circuit determined that the infrequency of the calls
indicated that the employees could pursue personal activities during their on call
time.122 Here, Plaintiffs were called back, at most, twice a month. Accordingly, the
frequency of calls was not unduly restrictive on Plaintiffs’ ability to pursue personal
activities during their waiting time.
Further, as to the seventh factor, the record shows that Plaintiffs actually
engaged in personal activities during waiting time. Mr. Ross generally worked from
8 a.m. to 9 p.m. during the preseason and longer, less predictable hours during

Docket 51-26 at 3, 9-10, 12, 19-20, 23-24, 27. Mr. Bauman testified that he recorded all call
back time on his timesheets and that he was paid for that time. Docket 51-7 at 14.
119

120

Brigham, 357 F.3d at 933-34.

121

Id. at 934 n.6.

Id. at 936-37. Ultimately, however, the Ninth Circuit in Brigham held that the Owens factors
“weigh[ed] narrowly in favor of the employees,” explaining that the low frequency of calls might
not be as significant of a factor in that case because the employees were “responsible for the
safety of thousands of people and, accordingly, had to be absolutely prepared to respond at all
times (i.e., rested, sober, clothed, and otherwise able to race immediately to the trouble source if
needed).” Id. at 938. By contrast, Plaintiffs in the instant case were not responsible for the
safety of thousands of people, and the record indicates they consumed alcohol during their offshift time. See Docket 51-7 at 8 (Bauman testifying that he drank alcohol daily in 2020 and
2021); Docket 51-2 at 16 (C. Flaherty testifying that before 2020 he would keep beer in his
personal refrigerator); Docket 51-3 at 12 (K. Flaherty testifying that he had beer in his personal
refrigerator); Docket 51-1 at 13 (Ross testifying that he brought beer to Naknek in 2019 by
barge). As such, the infrequency of calls remains informative to the Court’s analysis here.

122

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processing season.123 As noted, Mr. Ross drove his truck to pick up food from
Naknek restaurants and he used an AGS-provided delivery service to get supplies
delivered to campus.124 He also slept six to seven hours each night during the
preseason and five hours during the processing season.125
Cody Flaherty worked 11-hour shifts during the preseason and, at minimum,
18-hour shifts during processing season.126 During the preseason, he got at least
seven hours of sleep a night.127 During the processing season, he got four to five
hours of sleep and, when off shift, he “would try to sleep that entire time, maybe
try to get a shower in.”128 In 2020, after his shift, Cody Flaherty socialized with his
brother.129

He did not use the AGS delivery service to get food from local

restaurants or the grocery store at all that year, but he was aware that it was an
option.130 In 2021, he utilized the delivery service at most four times to get food or
supplies.131 There was a “halfway party” that season but he did not attend.132 In

123

Docket 51-1 at 11, 13.

124

Docket 51-1 at 16-17.

125

Docket 51-1 at 27-28, 46.

126

Docket 51-2 at 12, 23, 27.

127

Docket 51-2 at 16.

128

Docket 51-2 at 16, 37.

129

Docket 51-2 at 24.

130

Docket 51-2 at 24.

131

Docket 51-2 at 27.

132

Docket 51-2 at 27.

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2022, Cody Flaherty socialized with his brother and another resident of their fourroom house, and they played videogames together every week or two.133 He had
a personal internet connection and he used the delivery service.134 Cody Flaherty
also attended the midseason party that year.135
During the preseason, Kegan Flaherty worked from 8 a.m. to 9 p.m., and,
during the processing season, he worked 18-hour shifts.136 Generally, after his
shift during the preseason, he would shower, call home, talk to his brother, and
sleep.137 Specifically in 2020, once he was off his shift, Kegan Flaherty called his
girlfriend, watched TV, and talked to his brother.138 “[E]very now and then,” he
would play a game with his brother or another friend.139 He had pizza delivered a
few times.140

He would also ride his ATV on campus to and from work.141

However, due to the closed campus policy, he could not ride his ATV to the beach
or up and down the road.142 In 2021, Kegan Flaherty had pizza delivered once,

133

Docket 51-2 at 31.

134

Docket 51-2 at 31.

135

Docket 51-2 at 31.

136

Docket 51-3 at 10, 27, 33.

137

Docket 51-3 at 40.

138

Docket 51-3 at 25.

139

Docket 51-3 at 25.

140

Docket 51-3 at 25.

141

Docket 51-3 at 25.

142

Docket 51-3 at 25.

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and, in 2022, he moved into a four-room house on campus with his brother and
another friend.143

He socialized with them, had a TV, internet, and laundry

facilities, used the delivery service, and attended another machinist’s birthday
party.144
In 2020 and 2021, Ms. Patton worked 16 to 20-hour shifts.145 In 2022, during
the preseason, she worked 12-hour shifts, and she got eight hours of sleep a
night.146 During the time AGS was a closed campus, when Ms. Patton was off
shift, she would sleep, call her children on the phone, and do laundry.147 She was
not allowed to go to the store, as she had done twice a season prior to 2020.148
Mr. Barlahan worked 12-hour shifts during the preseason, and, during
processing season, he worked 17-hour shifts.149 Prior to 2020, when off shift, Mr.
Barlahan slept, did laundry, and walked to the store.150 In 2020, when he was off
shift, he slept.151

143

Docket 51-3 at 29, 33.

144

Docket 51-3 at 33-34.

145

Docket 51-4 at 5.

146

Docket 51-4 at 5.

147

Docket 51-4 at 10.

148

Docket 51-4 at 7, 10.

149

Docket 51-5 at 7.

150

Docket 51-5 at 7-8.

151

Docket 51-5 at 11.

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In 2020 in Egegik, Mr. Bauman worked 13-hour shifts.152 When asked what
he did with his downtime, he said, “[In] 2020 we were restricted to campus, so
there was no[t] really downtime.”153 In 2021 in Naknek, when he was not working,
Mr. Bauman “watched movies[,] . . . wrote a few letters, talked to [his] family.”154
He also did laundry, consumed alcohol, and could have walked around AGS’s
Naknek compound, but stated that “it was frowned upon” due to the pandemic.155
In light of this record, Plaintiffs actually engaged in extensive personal
activities during waiting time.156 They slept, ate, ordered pizza, did laundry, called
friends and family, watched TV, played video games, and drank beer. Some of
them attended a midseason party and a birthday party. They also socialized with
friends on campus. Accordingly, the third and seventh factors weigh strongly in
favor of finding Plaintiffs were able to engage in personal activities during waiting
time.
The fourth and fifth factors are less helpful in analyzing whether Plaintiffs
could use their waiting time for personal activities. Relevant to the fourth factor—

152

Docket 51-7 at 6.

153

Docket 51-7 at 6.

154

Docket 51-7 at 7.

155

Docket 51-7 at 7-8.

See Brigham, 357 F.3d at 936-37 (noting that the seventh factor weighed in favor of finding
employees could use on-call time to pursue personal activities when they actually used some of
that time to “sleep, eat, read, study, exercise, watch television, help their children with
homework, play games, maintain their homes and yards, work on their motorcycles, and
entertain guests”).

156

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whether a fixed time limit for response was unduly restrictive—the Processor and
Beach Gang CBAs provided that AGS would give employees two hours advance
notice for any call to work.157 Mr. Ross testified that he was called out to fix the
power three to four times each season and that, when he was needed to fix the
power, he either responded on his own because he could see that the power went
down or someone came and alerted him.158 Cody Flaherty testified that there was
no set time to respond to a call but “[i]t was more like, . . . hey, we need you down
here.”159 Kegan Flaherty testified that when “called back to work, someone would
come grab you.”160 But he was never called back in 2020 or 2021, and, in 2022,
he was once “asked if [he] would be willing to work, and [he] said yes[,] [b]ut it
ended up that [he] did not have to go down.”161 Considering that Plaintiffs were
residing on campus and were often alerted in person when needed, the time to
respond to a call is less indicative of whether a fixed time limit for response was
unduly restrictive such that it restricted Plaintiffs’ ability to engage in personal
activities.
The same is true of the fifth factor: whether the on-call employee could easily
trade on-call responsibilities. Mr. Ross stated that his position was unique in that

157

Docket 51-16 at 7; Docket 51-17 at 12.

158

Docket 51-1 at 11-12.

159

Docket 51-2 at 14.

160

Docket 51-3 at 7.

161

Docket 51-3 at 34.

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he was responsible for helping with refrigeration and fixing power issues.162 Kegan
Flaherty testified that “[t]here was no trading” shifts.163 However, according to
Cody Flaherty, if an employee needed to, he or she could trade a shift to take a
day off.164 Mr. Bauman stated that when there was a “callout” and “some work to
be done after hours, . . . the beach [gang] boss would come along and ask for
volunteers.”165 The Beach Gang CBA provided that “[w]hen overtime is assigned,
the company shall make every reasonable effort to make all hours equally
available to all members of the beach gang wherever practical.”166 The record
indicates that, while shifts were not traded, if necessary, machinists could find
someone to cover their shift, and beach gang members could trade on call
responsibilities. The fourth and fifth factors are therefore neutral as to whether
Plaintiffs could pursue personal activities during waiting time.
Finally, the sixth factor—whether use of a pager could ease restrictions—is
less relevant when employees lived on company grounds. Cody Flaherty was
called in over the phone or via a radio.167 Mr. Ross “[had] a cell phone and . . .

162

Docket 51-1 at 39-40.

163

Docket 51-3 at 38-39.

164

Docket 51-2 at 36.

165

Docket 51-7 at 9.

166

Docket 51-17 at 12.

167

Docket 51-2 at 14.

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they could call [him] any time.”168 This could be viewed as either making Mr.
Ross’s waiting time less restrictive, as he could spend off duty time outside his
bunkhouses and somewhere on campus, or as highly restrictive because Mr. Ross
could be contacted instantly. And the two-hour advance notice provided to the
beach gang and processers under their CBAs would make pagers of little utility,
as such advance notice would theoretically allow those workers to complete any
off-shift personal activities before returning to work. Apart from Mr. Ross, the Court
finds that this factor weighs in favor of finding that Plaintiffs could pursue personal
activities while waiting.
In sum, the first and second Owens factors indicate that Plaintiffs could not
use their waiting time for personal activities, the third and seventh factors strongly
indicate that they could, the fourth and fifth factors are neutral, and the sixth factor
indicates most Plaintiffs could use their waiting time for personal activities.
However, the Owens factors are only the first part of the Court’s analysis of
whether Plaintiffs were waiting to be engaged or were engaged to wait. In addition
to evaluating the degree to which Plaintiffs were free to engage in personal
activities during waiting time, the Court must determine if there was an agreement
between the parties regarding whether waiting time was compensable.169
“[A]n agreement cognizable for purposes of the FLSA overtime inquiry may

168

Docket 51-1 at 28.

169

Brigham, 357 F.3d at 936 (citation omitted).

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arise by conduct.”170 “A constructive agreement may arise if employees have been
informed of the overtime compensation policy and continue to work under the
disclosed terms of the policy.”171 “[T]he existence of such agreements assists the
trier of fact in determining whether the parties characterized the time spent waiting
on-call as actual work.”172 Accordingly, “[a]n agreement between the parties which
provides at least some type of compensation for on-call waiting time may suggest
the parties characterize waiting time as work.”173 “Conversely, an agreement
pursuant to which the employees are to be paid only for time spent actually
working, and not merely waiting to work, may suggest the parties do not
characterize waiting time as work.”174
Here, Plaintiffs worked under CBAs that provided for an eight-hour workday,
overtime compensation when Plaintiffs worked more than eight hours a day and
40 hours a week, and a minimum of two hours of overtime pay when Plaintiffs were
called back to work after their shift ended.175 Plaintiffs consistently worked shifts
longer than eight hours, and they received overtime compensation pursuant to the

170

Id. at 938.

171

Berry, 30 F.3d at 1180 (citation omitted).

172

Id. at 1181.

173

Id.

174

Id.

175

Docket 51-15 at 8, 12; Docket 51-16 at 6-7; Docket 51-17 at 12; Docket 51-20 at 8, 10-11.

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terms of the CBAs.176 When they were called back to work, they were also paid
pursuant to the CBAs.177 Therefore, the CBAs provided for payment for time spent
actually working.
In 2022, the machinists’ union renegotiated their CBA.178 The renegotiated
CBA added a new section:
9.3 Penalty Time: Any employee who does not have a four
(4) hour rest period between shifts will be given eight (8) hours
of pay at the straight time rate automatically, plus, all hours
worked the following day will be paid at an overtime rate of one
and a half times (1.5x) their regular hourly rate. Any work
triggering Penalty Time must be specifically approved by the
Plant Manager or other Company designated person. The
Plant Manager may adjust the following day’s shift start time to
allow for a four (4) hour rest period.179
Previously, the Machinist CBA provided that, after machinists “terminated a
shift, they shall not be required to start work again until a four (4) hour rest period
has elapsed, unless they receive overtime pay.”180 The addition of the penalty time
provision indicates that the Machinist 2020 and 2021 CBAs did not recognize rest
time as compensable working time; the 2022 Machinist CBA only recognized rest

See Docket 51-21 (C. Flaherty’s time sheets indicating regular 11 to 18-hour shifts in 2020
and 2021); Docket 51-22 (K. Flaherty’s time sheets indicating regular 11 to 19-hour shifts in
2020 and 2021); Docket 51-7 at 6 (Bauman testifying he “clock[ed] in at 8 a.m. and then [was]
off the clock at 9 p.m.”).
176

Docket 51-1 at 21-23, 25, 27-28 (Ross); Docket 51-2 at 47, 65 (C. Flaherty); Docket 51-3 at
39 (K. Flaherty); Docket 51-7 at 15-16 (Bauman).
177

178

Docket 51-20.

179

Docket 51-20 at 8.

180

Docket 51-15 at 8.

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time as compensable time when the rest period between shifts was less than four
hours.
In addition, before 2020, Plaintiffs had never been compensated for waiting
or sleep time, and they returned to work each season under those terms. Before
2020, Mr. Ross had never been paid by AGS for off-shift time except when he was
called back to work.181 Nor had he ever been paid by AGS for sleep time, and he
returned to work at AGS in Naknek in 2021 and 2022 knowing sleep time was
unpaid.182 Cody Flaherty had never been paid for off-shift time except when he
was called back to work.183 He also had never been paid by AGS for sleep time,
and he returned to work at AGS in 2020, 2021, and 2022 knowing that sleep time
was unpaid.184 Kegan Flaherty had never been paid for off-shift time or for sleep
time, and he returned to work at AGS in 2020, 2021, and 2022 knowing that sleep
time was unpaid.185 Ms. Patton had never been paid for off-shift time,186 and
neither had Mr. Barlahan.187 Mr. Bauman similarly had never been paid for any
time that he was not working while on AGS property in Egegik, and he had never

181

Docket 51-1 at 30-31.

182

Docket 51-1 at 45.

183

Docket 51-2 at 39.

184

Docket 51-2 at 62.

185

Docket 51-3 at 41, 52.

186

Docket 51-4 at 9.

187

Docket 51-5 at 10.

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been paid for sleep time.188 Further, Plaintiffs were informed that AGS would be
operating a closed campus before they traveled to Alaska in 2020,189 2021,190 and
2022.191
Plaintiffs chose to work for AGS during the COVID-19 pandemic fully aware
of the closed campus policy and that waiting time was uncompensated, signaling
their constructive acceptance of those terms.192 Accordingly, the record shows
that the CBAs only provided payment for actual working time, and there was a
constructive agreement between the parties that waiting time, even on a closed
campus, was uncompensated.
ii. Sleep Time
Plaintiffs, in the alternative, invoke 29 C.F.R. § 785.22 regarding 24-hour
duty and sleep time to support their claim for overtime compensation.193 In its
188

Docket 51-7 at 10.

Docket 51-27 at 2-3 (email to C. Flaherty noting that “only approved ‘[r]unner’ personnel will
be allowed to leave camp this season” and “[a]ll other personnel must stay onsite at all times”),
18-19 (email to Barlahan noting same).
189

Docket 51-1 at 16 (Ross); Docket 51-2 at 25 (C. Flaherty); Docket 51-3 at 28 (K. Flaherty);
Docket 51-4 at 22-23 (Patton); Docket 51-27 at 24 (Bauman).
190

Docket 51-1 at 22 (Ross); Docket 51-2 at 28 (C. Flaherty); Docket 51-3 at 30 (K. Flaherty);
Docket 51-4 at 22-23 (Patton).
191

See Owens, 971 F.2d at 355 (“[T]he Plaintiff mechanics . . . may not have liked the
company’s formal call-in system, but by continuing to work, they constructively accepted the
new terms.”).
192

Docket 67 at 38-39, 41 (quoting 29 C.F.R. § 785.22(a), which provides, “Where an employee
is required to be on duty for 24 hours or more, the employer and the employee may agree to
exclude bona fide meal periods and a bona fide regularly scheduled sleeping period of not more
than 8 hours from hours worked, provided adequate sleeping facilities are furnished by the
employer and the employee can usually enjoy an uninterrupted night’s sleep. If sleeping period
is of more than 8 hours, only 8 hours will be credited. Where no expressed or implied
193

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motion for summary judgment, AGS disputes the applicability of § 785.22.194
Instead, AGS contends that 29 C.F.R. § 785.23 applies because it refers to
employees residing on the employer’s premises.195
AGS is correct that § 785.23 applies. In Brigham—where the employees
resided on the utility company’s remote property and worked 24-hour on-call
shifts—the Ninth Circuit rejected the employees’ argument that § 785.22
applied.196 Rather, the Ninth Circuit held that “the more specific regulation should
control over the more general, and thus . . . § 785.23 provides the most pertinent
regulatory guidance.”197 Because Plaintiffs resided on AGS’s property, § 785.23
applies here.
Section 785.23 provides that “[a]n employee who resides on his employer’s
premises on a permanent basis or for extended periods of time is not considered
as working all the time he is on the premises.”

Because of the difficulty

agreement to the contrary is present, the 8 hours of sleeping time and lunch periods constitute
hours worked.”).
194

Docket 48-1 at 54-56.

Docket 48-1 at 50-54 (quoting 29 C.F.R. § 785.23, which provides, “An employee who
resides on his employer’s premises on a permanent basis or for extended periods of time is not
considered as working all the time he is on the premises. Ordinarily, he may engage in normal
private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods
of complete freedom from all duties when he may leave the premises for purposes of his own. It
is, of course, difficult to determine the exact hours worked under these circumstances and any
reasonable agreement of the parties which takes into consideration all of the pertinent facts will
be accepted.”).
195

196

Brigham, 357 F.3d at 933-34, 940 n.17.

197

Id. at 940 n.17 (citation omitted).

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“determin[ing] the exact hours worked under these circumstances[,] . . . any
reasonable agreement of the parties which takes into consideration all of the
pertinent facts will be accepted.”198 An employer that seeks to exclude certain
waiting time from compensable hours worked when their employees live on their
property must show, “plainly and unmistakably, that (1) there was an agreement
to compensate [employees] for [their] overtime work . . . , and (2) the agreement
was reasonable, having taken into account all of the pertinent facts.”199 “[T]he
reasonableness of a § 785.23 agreement must be assessed in light of all of the
surrounding circumstances” and it “must take into account some approximation of
the hours actually worked, or reasonably required to be worked, by the
employee.”200
Here, as noted above, the CBAs did not consider sleeping time as work
because the agreements only provided payment for time actually spent working.
Regarding whether those agreements were reasonable, the CBAs accounted for
all hours actually worked because they provided compensation for overtime work
performed by Plaintiffs during shifts longer than eight hours and a minimum of two
hours for all call time. And, during the unique circumstances of the COVID-19
pandemic, while Plaintiffs could not leave the premises, they could still engage in

198

29 C.F.R. § 785.23.

Leever v. City of Carson, 360 F.3d 1014, 1018 (9th Cir. 2004) (internal quotation marks and
citation omitted). See 29 C.F.R. § 785.23.

199

200

Leever, 360 F.3d at 1021.

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personal activities, including sleeping, as well as eating, watching TV, playing
video games, speaking to family and friends on the phone, showering, and doing
laundry.

Further, as with waiting time, there was a constructive agreement

between the parties that sleep time was uncompensated, as Plaintiffs arrived at
AGS’s facilities aware that they were closed campuses and that sleep time had
previously been uncompensated, and Plaintiffs continued to work on the closed
campus without compensation for sleep time.201

As such, the agreements

between the parties that waiting and sleep time were not compensable working
hours were reasonable.
Accordingly, AGS has shown that there were agreements between the
parties regarding compensation for overtime work, the agreements provided that
waiting and sleep time were not compensable working time, and the agreements
were reasonable because they allowed for an accurate computation of
compensable overtime and accounted for the pertinent facts. The Court therefore
grants AGS’s motion for summary judgment as to Plaintiffs’ FLSA claim.202

201

See Owens, 971 F.2d at 355.

The Court’s grant of summary judgment also applies to Plaintiffs’ claims regarding AGS’s
facilities in Ketchikan and Egegik. Mr. Ross was the only Plaintiff who worked at Ketchikan, and
he testified that he was not subject to the closed campus policy and could leave campus as he
pleased. Docket 51-1 at 21-22. Mr. Bauman was the only Plaintiff who worked at Egegik, and
his testimony on the conditions at Egegik was sparse. Therefore, Plaintiffs have not offered
“specific facts showing that there is a genuine issue for trial” to overcome the “absence of
evidence to support [Plaintiffs’] case” regarding Egegik or Ketchikan. Celotex Corp., 477 U.S. at
324; Devereaux, 263 F.3d at 1076 (citations omitted).
202

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c. Alaska Wage and Hour Act
“The AWHA requires an employer to pay employees at the overtime rate of
one and one-half times the regular rate for hours worked in excess of eight hours
a day or forty hours a week.”203 “The starting point for determining whether
overtime pay is due is thus a determination of employee time spent ‘actually
working.’”204

Alaska courts apply the Ninth Circuit’s Owens framework to

determine “whether employees’ time is so restricted that they deserve to be
compensated for it” under the AWHA.205
Because the Court’s analysis under Owens concluded that Plaintiffs were
not actually working during their waiting time, Plaintiffs are not entitled to overtime
compensation for waiting time or sleep time under the AWHA. Accordingly, the
Court grants AGS’s motion for summary judgment as to Plaintiffs’ AWHA claim.
II.

Remaining Motions
Remaining before the Court are AGS’s Motion to Certify a Question to the

Alaska Supreme Court and to Stay Proceedings at Docket 52, Plaintiffs’ Motion for
Certification of a Rule 23 Class Action at Docket 54, and Plaintiffs’ Motion for
Conditional Certification of a FLSA Collective Action at Docket 56. Because the
Court grants summary judgment to AGS on Plaintiffs’ FLSA and AWHA claims, the

Moody v. Lodge, 433 P.3d 1173, 1179 (Alaska 2018) (internal quotation marks and emphasis
omitted).
203

204

Id.

205

Id.

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remaining motions are denied as moot.
CONCLUSION
In light of the foregoing, IT IS ORDERED that:
 AGS’s Motion for Summary Judgment on Plaintiffs’ “Closed Campus”
Claims at Docket 48 is GRANTED;
 AGS’s Motion to Certify a Question to the Alaska Supreme Court and to
Stay Proceedings at Docket 52 is DENIED as moot;
 Plaintiffs’ Motion for Certification of a Rule 23 Class Action at Docket 54 is
DENIED as moot; and
 Plaintiffs’ Motion for Conditional Certification of a FLSA Collective Action at
Docket 56 is DENIED as moot.
Accordingly, Plaintiffs’ claims are DISMISSED with prejudice. The Clerk of
Court shall enter a final judgment accordingly.
DATED this 15th day of November, 2023, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

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