Patton v. Stolle Machinery Company LLC

Filing 25

ORDER granting 9 Motion to Dismiss for Lack of Jurisdiction. The Courts ORDERS 1. Defendants Motion to Dismiss (ECF No. 9.) is GRANTED; 2. Plaintiffs FLSA claim is DISMISSED WITHOUT PREJUDICE; and 3. The Clerk shall TERMINATE this case. Defendant shall have its costs, by Judge William J. Martinez on 08/25/2015.(cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 14-cv-3392-WJM-KLM
MARK PATTON,
Plaintiff,
v.
STOLLE MACHINERY COMPANY, LLC,
Defendant.

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

Plaintiff Mark Patton (“Plaintiff”) brings this suit against Defendant Stolle
Machinery Company, LLC (“Defendant”) under the Fair Labor Standards Act (“FLSA”),
29 U.S.C. §§ 201 et seq. (ECF No. 1.) On January 28, 2015, Defendant filed a Motion
to Dismiss for Lack of Jurisdiction under Federal Rule of Civil Procedure 12(b)(1)
(“Motion”). (ECF No. 9.) Defendant alleges that the Court lacks jurisdiction over this
matter because Plaintiff’s claims necessarily require the interpretation of an applicable
collective bargaining agreement. (See id.) For the reasons set forth below, the Motion
is granted.
I. LEGAL STANDARD
Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction generally
take one of two forms. A facial attack questions the sufficiency of the complaint as to
its subject matter jurisdiction allegations. Holt v. United States, 46 F.3d 1000, 1002
(10th Cir. 1995). In reviewing a facial attack, courts accept all well-pled allegations as

true. Id. A factual attack, on the other hand, goes beyond the allegations in the
complaint and challenges the facts on which subject matter jurisdiction is based. Id. at
1003. A factual attack does not permit the court to presume the complaint’s factual
allegations are true, although the court does have “wide discretion to allow affidavits,
other documents, and a limited evidentiary hearing to resolve disputed jurisdictional
facts under Rule 12(b)(1).” Id. In such circumstances, the court’s reference to
evidence beyond the pleadings will not convert the motion to one under Rules 56 or
12(b)(6), unless the jurisdictional question is intertwined with the merits of the case. Id.
“The jurisdictional question is intertwined with the merits of the case if subject matter
jurisdiction is dependent on the same statute which provides the substantive claim in
the case.” Id.
II. BACKGROUND
The following facts are gathered from Plaintiff’s Complaint. Plaintiff is employed
by Defendant as a factory production worker. (ECF No. 1 at 2.) Factory workers at
Defendant’s facility are required to wear appropriate safety equipment while working on
the shop floor. (Id. at 3.) Appropriate safety equipment includes steel-toed shoes, long
pants, shirts with sleeves, and safety glasses (collectively “Safety Attire”). (Id.) Plaintiff
alleges he works at least 40 hours per week “on the clock.” (Id. at 4.) However,
Plaintiff spends approximately 20 minutes at the beginning and end of each shift
donning and doffing the required Safety Attire. (Id.) The roughly 40 minutes of
changing time each day is not compensated by Defendant and is “off the clock.” (Id.)
Plaintiff alleges that this amounts to about three hours of uncompensated overtime

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each week. (Id.) Thus, Plaintiff claims he is entitled to payment under the FLSA for the
time he spends working, as well as the time he spends donning and doffing his Safety
Attire. (Id. at 4-5.)
Defendant states that Plaintiff, as a factory worker at Defendant’s facility, is a
member of a union. (ECF No. 9 at 1.) As a result, Plaintiff is subject to a collective
bargaining agreement (“CBA”) that Defendant alleges addresses “work hours, overtime,
payroll practices, grievance procedures, and changing of clothing.” (Id. at 2.)
Therefore, Defendant argues that to reach Plaintiff’s FLSA claim, the CBA must be
interpreted pursuant to the grievance and arbitration process under the Labor
Management Relations Act of 1947 (“LMRA”), 29 U.S.C. §§ 141 et seq. (Id.)
Defendant accordingly argues that the Court does not have subject matter jurisdiction to
resolve Plaintiff’s FLSA claim unless and until the CBA is interpreted pursuant to the
grievance process under the LMRA. (Id. at 2.) Plaintiff does not dispute that he did not
resort to the CBA’s grievance process prior to initiating this lawsuit. (ECF No. 14.)
III. ANALYSIS
A.

Converting the Motion
The Court must first determine whether it must convert Defendant’s Motion into a

motion for relief under Rule 56 or Rule 12(b)(6). Defendant’s Motion is properly
characterized as a factual attack because both parties have attached materials beyond
the pleadings that do not bear on the sufficiency of Plaintiff’s Complaint. (See ECF
Nos. 9, 14.) These extraneous materials are, rather, offered to support the parties’
respective positions as to the facts on which subject matter jurisdiction depends. (See

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id.) Whether the aspects of Defendant’s jurisdictional challenge are intertwined with the
merits of this matter is a separate question.
The Motion argues that Plaintiff’s FLSA claim requires interpretation of the CBA
pursuant to the LMRA grievance process. (ECF No. 9 at 1-3.) It is true, generally
speaking, that a Rule 12(b)(1) motion should be converted “if subject matter jurisdiction
is dependent on the same statute which provides the substantive claim in the case.”
Holt, 46 F.3d at 1003. But here, Defendant alleges that jurisdiction hinges on the
proper application of the LMRA, while the FLSA provides the basis of Plaintiff’s
substantive claim. And, in any event, the Court’s resolution of the jurisdictional question
here does not require resolution of any aspect of the substantive FLSA claim. See
Sizova v. Nat’l Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir. 2002).
Accordingly, the Court need not convert the Motion and will consider Defendant’s
jurisdictional arguments under Rule 12(b)(1).
B.

Plaintiff’s FLSA Claim
The FLSA provides overtime compensation for employees working more than 40

hours per week. 29 U.S.C. § 207(a)(1). However, to determine an employee’s total
working hours, “any time spent in changing clothes or washing at the beginning or end
of each workday which was excluded from measured working time during the week
involved by the express terms of or by custom or practice under a bona fide
collective-bargaining agreement applicable to the particular employee” is excluded.
29 U.S.C. § 203(o). Defendant argues that pursuant to its longstanding Safety Attire
customs and practices under the CBA, Defendant allows employees either to wear

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Safety Attire from home, or change into it at the facility on the clock. (ECF No. 9 at 45.) Thus, according to Defendant, Plaintiff’s claim rests on an interpretation of the CBA,
which must be resolved through the grievance and arbitration procedures pursuant to
Section 301 of the LMRA, 29 U.S.C. § 185, before Plaintiff can proceed to federal
court.1 (Id.) The Court must accordingly determine whether Plaintiff’s FLSA claim is
“inevitably intertwined” with the application or interpretation of the CBA. Bell v. Se.
Penn. Transp. Auth., 733 F.3d 490, 494 (3d Cir. 2013).
The Supreme Court has recognized that, in submitting a grievance to arbitration,
an employee subject to a collective bargaining agreement seeks to assert his rights
under that agreement. Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728,
745 (1981). But when an employee files a suit under a federal statute, he “asserts
independent statutory rights accorded by Congress” that are “distinctly separate” from
his contract rights. Id. “The distinctly separate nature of these contractual and
statutory rights is not vitiated merely because both were violated as a result of the same
factual occurrence. And certainly no inconsistency results from permitting both rights to
be enforced in their respectively appropriate forums.” Id. at 745-46.

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The statute provides:
Suits for violation of contracts between an employer and a labor
organization representing employees in an industry affecting
commerce as defined in this chapter, or between any such labor
organizations, may be brought in any district court of the United
States having jurisdiction of the parties, without respect to the
amount in controversy or without regard to the citizenship of the
parties.

29 U.S.C. § 185(a).

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However, sometimes an employee’s statutory claim is “inevitably intertwined”
with the application or interpretation of a collective bargaining agreement. Bell, 733
F.3d at 494. The Third Circuit has held that “while claims resting on the language of
[FLSA] section 7(a) are clearly cognizable under that section, we believe that claims
which rest on interpretations of the underlying collective bargaining agreement must be
resolved pursuant to the procedures contemplated under the LMRA, specifically
grievance, arbitration, and, when permissible, suit in federal court under section 301 [of
the LMRA].” Vadino v. A. Valey Eng’rs, 903 F.2d 253, 266 (3d Cir. 1990). “Of course,
not every dispute concerning employment, or tangentially involving a provision of a
[CBA], is preempted by § 301,” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211
(1985), such as the “mere referral to the CBA for information,” Vera v. Saks & Co., 335
F.3d 109, 115 (2d Cir. 2003). The claim must instead be “substantially dependent” on
an analysis of the CBA. Caterpillar Inc. v. Williams, 482 U.S. 386, 394 (1987). Thus if
an FLSA claim depends on the disputed interpretation of a provision in the applicable
collective bargaining agreement, “an employee must first go to arbitration—through the
representative union—before vindicating his or her rights in federal court under the
FLSA.” Bell, 733 F.3d at 494.
For example, in Townsend v. BC Natural Chicken LLC, the plaintiffs argued they
were entitled to unpaid wages for donning and doffing time pursuant to the FLSA. 2007
WL 442386, at *1 (E.D. Pa. Feb. 2, 2007). T he defendants argued that FLSA § 203(o)
applied to limit donning and doffing time, and cited a provision in the collective
bargaining agreement at issue that provided for “twelve (12) minutes pay per week to

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provide for wash up time.” Id. at *4. If it was determined during the plaintiff’s grievance
process that the parties intended “wash up” time to include donning and doffing time,
such time could be lawfully excluded from the FLSA overtime calculation. See id. The
court accordingly held that the plaintiffs’ FLSA claim must be dismissed because any
decision as to the plaintiff’s FLSA claim would require the court to also interpret the
collective bargaining agreement as a threshold matter. Id.
Plaintiff attempts to distinguish this line of cases by arguing that, unlike
Townsend, the CBA contains no express provision related to donning and doffing time.
(ECF No. 14 at 14.) Yet Defendant does not appear to claim that any express provision
of the CBA governs donning and doffing time. (See ECF No. 9.) Rather, Defendant
submits the affidavit of Plant Manager Kevin Anderson as evidence that Defendant’s
“long-standing [S]afety [A]ttire customs, practices, and polic[ies] under the CBA” allow
employees to wear the Safety Attire from home, or don and doff the Safety Attire at
work on the clock. (ECF No. 9-3 at 2.) “[A] CBA is more than the sum of its parts. It
comprises express provisions, industry standards, and norm[s] that the parties have
created but have omitted from the collective bargaining agreement’s explicit language.”
Fry v. Airline Pilots Ass’n, Int’l, 88 F.3d 831, 836 (10th Cir. 1996) (emphasis in original).
Thus, Defendant argues, Plaintiff’s FLSA claim for unpaid donning and doffing time
requires an interpretation of the CBA’s implicit terms created through custom and
practice. (ECF No. 9 at 11.) The Court agrees, and notes that FLSA § 203(o)
expressly states that changing time may be excluded from measured working time “by
the express terms of or by custom or practice under” a collective bargaining agreement.

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Plaintiff further argues that Defendant’s § 203(o) arguments are undermined by
its own customs and practices evidence, which indicates that Defendant’s practice is in
fact to pay for donning and doffing time. (ECF No. 14 at 15.) Mr. Anderson’s affidavit
states in relevant part:
5. Pursuant to long-standing dress code customs, practices,
and policy under the CBA, [Defendant] requires its factory
production workers to wear long pants of any kind (even
sweat pants) and shirts of any kind, with sleeves (short or
long-sleeved including t-shirts), to work. They are allowed to
wear this clothing to and from work, or may change into and
out of this clothing in the company locker room, on the clock,
while being paid for the time.
6. Pursuant to long-standing safety attire customs,
practices, and policy under the CBA, and the express terms
of the CBA, [Defendant] requires its assembly personnel to
wear steel-toed shoes and safety glasses while at work.
They are allowed to wear these items from home, or may
change into and out of them in the company locker room, on
the clock, while being paid for the time. . . .
8. Pursuant to the timekeeping custom and practices under
the CBA, [Defendant] has various practices surrounding time
clock use and payroll practices.
(ECF No. 9-3 at 2.)
Defendant responds that it has not conceded that all chang ing time is
compensable and not excluded by the CBA’s customs and practices, only that
employees are permitted to change in and out of clothes “on the clock.” (ECF No. 16 at
3.) However, Plaintiff alleges in his Complaint that he must arrive at the factory 20
minutes prior to the start of his shift, and spends 20 minutes after his shift ends,
changing clothes “off the clock.” (ECF No. 1 at 4.) There is, therefore, a dispute
between the parties as to the compensability on donning and doffing time. The CBA
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grievance process could reveal that Defendant’s custom is to compensate for donning
and doffing time within the mandated eight-hour workday “on the clock,” but to not pay
for such time that occurs “off the clock” in excess of the traditional workday.2 Thus,
before the Court reached the merits of Plaintiff’s FLSA claim, it would be required to
interpret the CBA’s customs and practices to determine which time Defendant has
deemed compensable, and which, if any, it has validly excluded under § 203(o). The
Court finds that the CBA contract interpretation issue here is substantially intertwined
with Plaintiff’s FLSA claim.
Plaintiff’s additional arguments are unavailing. Plaintiff devotes much of its
Response to two lines of cases that do not quite address the issue presented in
Defendant’s Motion. First, Plaintiff argues that the CBA is devoid of any notice that
Plaintiff’s right to federal court adjudication of FLSA claims has been waived through
the collective bargaining process, as required by Wright v. Universal Marine Services
Corp., 525 U.S. 70 (1998) and its progeny. (ECF No. 14 at 2.) In Wright, the plaintiff,
who was party to a collective bargaining agreement, brought suit under the Americans
with Disabilities Act (“ADA”) against several stevedoring companies that allegedly
refused to hire him because of his disability. 525 U.S. at 74-75. The defendants
argued that the plaintiff could not bring suit because he had not exhausted the
grievance process in the collective bargaining agreement. Id. The Court held that the
bargaining agreement’s general arbitration clause did not require the plaintiff to arbitrate

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The CBA describes a “regularly scheduled workday” as “eight (8) consecutive hours of
work, exclusive of a thirty (30) minute unpaid lunch period, and the regularly scheduled
workweek will consist of forty (40) hours fo work composed of five (5) consecutive workdays,
Monday through Friday.” (ECF No. 9-1 at 5.)

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his ADA claim prior to bringing suit, and that such a waiver of the employee’s right to a
judicial forum for his federal claims must be “clear and unmistakable.” Id. at 76.
Defendant has not argued that Plaintiff waived his right to litigate his FLSA claim.
Rather, Defendant argues that the Court lacks subject matter jurisdiction at this time
because Plaintiff’s FLSA claim rests on an interpretation of the CBA. “Section 301
governs claims founded directly on rights created by collective-bargaining agreements,
and also claims substantially dependent on analysis of a collective-bargaining
agreement.” Caterpillar Inc., 482 U.S. at 394. The issue, therefore, is not whether
Plaintiff has waived any right to a judicial forum, but whether his FLSA claim is truly
independent of the CBA, which the Court has held it is not. The Court accordingly finds
this argument inapposite to the matter at bar.
Second, Plaintiff argues that its FLSA claim is not presumed to be arbitrable
under the LMRA. There is a presumption that a particular dispute is subject to
arbitration in collective bargaining agreements unless a court can say with positive
assurance that the arbitration clause is not susceptible to an interpretation that cov ers
the dispute. See Wright, 525 U.S. at 78. Plaintiff argues that the CBA’s grievance
process is limited in scope to the claims arising under the CBA itself, and does not
extend to statutory claims. (ECF No. 14 at 8.) But Defendant has not argued that a
presumption of arbitrability applies here; the issue is whether the CBA must be
interpreted to resolve the FLSA claim. The Court is not persuaded by Plaintiff’s
alternative arguments and will accordingly dismiss Plaintiff’s FLSA claim without

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prejudice.3
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Defendant’s Motion to Dismiss (ECF No. 9.) is GRANTED;

2.

Plaintiff’s FLSA claim is DISMISSED WITHOUT PREJUDICE; and

3.

The Clerk shall TERMINATE this case. Defendant shall have its costs.
Dated this 25th day of August, 2015.
BY THE COURT:

_______________________
William J. Martínez
United States District Judge

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The Court also rejects Plaintiff’s argument that the CBA’s grievance and arbitration
provisions are unenforceable because the Union retains the final decision as to whether an
employee’s FLSA claim will move forward. (ECF No. 9.) The cases cited by Plaintiff, Shankle
v. B-G Maint. Mgmt. of Colo., Inc., 163 F.3d 1230, 1234 (10th Cir. 1999) and de Souza Silva v.
Pioneer Janitorial Servs., Inc., 777 F. Supp. 2d 198, 206 (D. Mass. 2011), stand for the
proposition that where an arbitration provision prohibits the use of a judicial forum as a means
of resolving statutory claims, the agreement must provide for an accessible, alternative forum in
which to bring those claims. Plaintiff has not shown that the CBA prevents him from asserting
his statutory rights in a judicial forum, and the Court does not read the grievance and arbitration
provision to operate as a waiver of Plaintiff’s right to do so. For similar reasons, Plaintiff has not
shown that the grievance process is insufficient to serve the “remedial and deterrent” function of
federal statutes. Finally, the Court is not convinced that the grievance and arbitration provision
is so narrow as to preclude resolution of Plaintiff’s claim insofar as it relates to the CBA, which
clearly defines hours of work, overtime, and pay periods. (ECF No. 9-1 at 5-6.)

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